Public universities punish criticism of gender ideology as harassment, discrimination: lawsuits

With the Supreme Court refusing to review an appeals court that let school districts censor students who oppose gender ideology, college students are rushing to lower courts to protect their right to say a man can't become a woman – and to invite outside speakers with the same viewpoints — without the threat of a discrimination investigation.

Young America's Foundation and Defending Education recently filed same-day federal lawsuits on behalf of their student members against the University of Minnesota and University of California, respectively, arguing their sexual harassment policies are speech codes that subject them to potential punishment for calling someone the wrong pronoun, for example.

YAF members at four UMinn campuses, including the Twin Cities flagship, "have to walk on eggshells while engaging with these topics, making sure to not voice opinions different from that of the school" on issues like men who identify as women competing in women's sports, said Kim Hermann, president of the Southeastern Legal Foundation, which is representing YAF.

UC requires students to take anti-discrimination training that explicitly forbids certain speech, such as "intentionally" referring to a person by their pre-transition name or biologically accurate pronouns, but also includes ambiguous prohibitions, such as telling "jokes" that are "unwelcome" to people who don't identify with their sex, Defending Ed says.

Both suits were filed the day before the Juneteenth federal holiday, but a media contact for Southeastern Legal Foundation told Just the News the timing was "pure coincidence." Lawyers for each plaintiff didn't answer queries on whether they were coordinated.

It's deja vu all over again for YAF and the University of Minnesota, who have faced off before in First Amendment litigation.

The 8th U.S. Circuit Court of Appeals dismissed viewpoint discrimination claims against the university for putting a YAF event with conservative pundit Ben Shapiro in a smaller, less convenient campus venue than it gave similarly controversial speakers who also present security risks, including Rep. Ilhan Omar, D-Minn., and the president of Somalia.

Opponents of censoring gender-critical speech have won key victories at the appellate level, with several precedents cited in the new lawsuits.

The 6th Circuit ruled for a public university professor's right to avoid addressing students by preferred names and pronouns in 2021, and for K-12 students' right to "commonplace use of biological pronouns" last fall.

Also last fall, the 8th Circuit blocked an Iowa school district policy that equates "intentional and/or persistent refusal" to "respect" a peer's gender identity with bullying and harassment worthy of suspension and expulsion. UMinn is under 8th Circuit jurisdiction.

The 9th Circuit, which has jurisdiction over the University of California, last year blocked an Oregon adoption requirement that applicants agree to affirm the gender identity of "hypothetical adopted children" to participate in the program. 

Campus prohibitions on crude jokes go back more than a decade in public universities under the 9th Circuit's watch. 

The University of Oregon backed off disciplining a student for a throwaway sex joke after being called out by a free speech watchdog, which also flagged a California State University campus for a joke ban that resembles UC's current policy.

Terms so vague that students 'must guess at their meaning'

YAF's lawsuit names nearly 20 officials as defendants in their official capacities, including UMinn President Rebecca Cunningham, the regents and several equity, diversity, Title IX and student conduct staff at both the system and campus levels.

The university is imposing what courts nationwide had blocked in the context of the Biden administration's Title IX rewrite, which sought to "prohibit students from voicing opinions protecting women’s sports and women’s private spaces in schools" and force students to use preferred pronouns, the suit says.

The UMinn system has four policies restricting what students as well as their "guests" can say about gender identity – two on sexual harassment and one each on preferred pronouns and discrimination. 

YAF members "fear speaking broadly supported ideas," such as the immutability of sex and opposition to males using female bathrooms, or even inviting guest speakers coordinated by YAF who say the same things, such as detransitioner Chloe Cole, because members might be reported and punished.

They are coerced to use preferred pronouns in "everyday interactions with other students and with professors" and in "particular classes like foreign language courses," creating a false consensus on contested issues "instead of cultivating debate," the suit says.

YAF members at the Twin Cities and Duluth campuses unwillingly shared their own preferred pronouns "in the classroom setting, on official and unofficial University forms, and as part of a graded class exercise," to avoid being disciplined. The suit mentions religion only once, saying that preferred pronouns violate Catholic teaching.

The suit alleges the sexual harassment and discrimination policies violate the First and 14th amendments because they are so vague that students must "guess at their meaning," all four policies discriminate based on viewpoint, and the pronoun policy unconstitutionally compels speech.

It seeks a permanent injunction against enforcement of the "challenged aspects of the policies," nominal damages and attorney's fees.

Even applies to speech 'off-campus and unrelated' to campus programs

Defending Education's UC lawsuit, on behalf of members at UC campuses, also targets a panoply of system and individual campus leaders in their official capacities, most prominently Democratic Gov. Gavin Newsom in his capacity as an ex officio regent.

The system's sexual violence and sexual harassment policy exceeds the Supreme Court's standard for "actionable harassment" in educational settings, the suit says, by punishing students for "unwelcome […] sex-based conduct" that is "offensive" and "sufficiently severe, persistent or pervasive" that it inhibits or interferes with education.

The SCOTUS standard, known as Davis, limits peer-on-peer harassment to "severe, pervasive, and objectively offensive" conduct, requiring all three elements rather than any one, contrary to UC's policy.

As policies proliferate compelling students to affirm gender ideology and squelch their own views, "so too has the number of students who believe they are not free to express controversial opinions on campus," the suit says. 

It cites this year's Foundation for Individual Rights and Expression survey of student attitudes on free speech, which notably found that three-in-four students lean toward banning speakers from campus who believe "[t]ransgender people have a mental disorder." Three UC campuses got FIRE's worst ratings for free speech this year.

UC's revised sexual harassment policy, which took effect this year, "leaves no doubt" that it covers protected speech and even lack of speech, including verbal and nonverbal "aggression, intimidation, or hostility" based on gender identity, the suit says. It prohibits not only "derogatory names or slurs" but also a catchall for "other offensive terms."

The policy's 14th frequently asked question is the least ambiguous, flatly prohibiting "intentional or repeated" deadnaming and unwanted but biologically accurate pronouns. 

These provisions cover speech in any UC program, "even off-campus and unrelated to a UC program or activity so long as there are 'continuing adverse effects on' or a 'hostile environment' for students," in person or via "other devices or forms of contact," the suit says.

Students can submit complaints anonymously, and employees who are not acting in a "confidential capacity" – resident assistants, graduate teaching assistants and "all other student employees" – are required to report to campus authorities when they learn a student "may" have been misgendered, deadnamed or otherwise offended based on gender identity.

The suit refers to four anonymous students who allege their gender-critical speech is being chilled. One has "occasionally slipped up," drawing whispers and "dirty looks" in class when she referred to a trans student with the wrong pronouns and, at a social event, getting frozen out of conversation until she apologized for unwittingly misgendering another student.

Defending Ed is seeking injunctions against enforcement of the hostile-environment provision, FAQ No. 14 and similar policies, including for off-campus speech unrelated to school activities, and against compelling students to affirm gender identity or punishing them for using biologically accurate pronouns.