6th Circuit US court and pronouns

[highame]

I'm not sure the link will work but I think this ruling in the US might be important with regards free speech. Although not UK, it might be a useful precedent in upcoming court cases. I'm not au fay with US courts but an interesting verdict

The court’s opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthink—the kind that forces a subjective and manipulable view of one person’s self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

www.dailysignal.com/2021/04/01/the-6th-circuit-reached-the-right-conclusion-on-preferred-pronouns-other-courts-should-follow-suit/?fbclid=IwAR3rvDWZODIDDn26PfVf8Ef-cZ29stZ7cPOkEV5b77bZV4xtXjjAnQ7CbJ4

Thanks for posting. This could be huge, though if recent court cases are anything to go by, it won't be the end by any means.

Imagine a world where your entire life and career are at risk because you refuse to use compelled pronouns...and he was accused of unkindness. Talk about getting societal priorities wrong. They tried to destroy him. The Social Vengeance Movement.

It’s a pity that compelled speech is framed as a ‘leftist groupthink’ issue. There’s nothing leftwing about the gender identity movement — narcissism is the opposite of socialist.

But good news that this man was vindicated and the courts backed freedom of speech.

Good.

Unfortunately, Langcleg (and I really hope we can squash this before it takes too much hold here) the culture war in the US is hardening up and the Law is the only place of refuge. The media will keep this war alive because it's in their interests. Look at the mainstream media in the US, total capture and stories buried that don't fit the narrative

the kind that forces a subjective and manipulable view of one person’s self to become a defining reality for everyone else.

That sums it up.

Interesting. Here's a view of the case from the progressive media:

slate.com/news-and-politics/2021/03/amul-thapar-meriwether-trump-transgender-first-amendment.html

The upside down world we are in in which members of the teaching profession are being compelled to use the language individual students prefer. Imagine if there are several pupils in a class with different pronouns - what a waste of mental effort on the part of staff. No doubt some of them change their minds over time too. Refusal to capitulate then portrayed as some extreme right wing position.

Thanks for posting this highgame and the counter view, nauticant. Such very different takes on the same ruling. Nauticant, there is no attempt to analyse the case at all. People will be reading this without question.

I was struck by thinkingaboutLangCleg's comment and wanted to weigh up the opposing polarised views. Here's something inbetween (but still leaning heavily towards the progressive side) where there's sort of an attempt at analysis:

thehill.com/opinion/judiciary/546444-abuse-as-a-constitutional-right-the-meriwether-case

That was an interesting article nauticant. There was more detail about the case and an attempt to analyse why the author thought the ruling was a mistake. (Although I don't think the analogy of racism fits, I think it would be more akin to homophobia if based on religious grounds.)

I have teacher friend who works in a small secondary special school setting and the issues around pronouns are real, as the students (mostly girls) change their gender identity, name and pronouns quite regularly. My teacher friend says it's a nightmare to keep up with all the changes, especially so because there are so many of them. She would get disciplined if she refused to use their pronouns.

Yes, I thought the attempt to put the argument into a racial context was not quite right. I noted this comment in particular:

The court does not appear to have thought through the meaning of these sweeping statements in future cases.

Professor Andrew Koppelman is one of those who believes that courts need to decide based on an amalgam of the law and current day political thinking. But that's not what (arguably) courts are for, they are supposed to decide according to the law and it's for the legislature to identify where the law is out of alignment with reasonable public thought and to change the law to get that alignment. That comment is a neat example of the judicial activism controversy: en.wikipedia.org/wiki/Judicial_activism.

Yes, I've come across people who hold the same views. Didn't realise there was a name for it. It reminds me of Stonewall etc who want to get ahead of the law eg institutional capture.

Professor Andrew Koppelman is one of those who believes that courts need to decide based on an amalgam of the law and current day political thinking. But that's not what (arguably) courts are for, they are supposed to decide according to the law and it's for the legislature to identify where the law is out of alignment

In the UK courts it's a bit of both.

I remember the notorious divorce case from a few years ago (Owens v Owens) that went all the way to the Supreme Court where a woman was refused a divorce.

In the court of appeal, the judge said that the court was there to "state the law, not make the law":-

This is the law which it was the duty of Judge Tolson to apply. It is the law which it is equally our duty to apply. It is well known that many hold the view that this is not what the law should be, that times have moved on since 1969, and that the law is badly out-of-date, indeed antediluvian. That may be, and those who hold such views may be right, but our judicial duty is clear. As Sir Gorell Barnes P said in Dodd v Dodd [1906] P 189, 206, our task is jus dicere non jus dare – to state the law, not to make the law.

However, he then went on to say that the law does stay up to date:-

In one respect, however, the law permits, indeed requires us, to look at matters from the perspective of 2017. [This Act] is an "always speaking" statute... Although one cannot construe a statute as meaning something "conceptually different" from what Parliament must have intended..., where, as here, the statute is "always speaking" it is to be construed taking into account changes in our understanding of the natural world, technological changes, changes in social standards and, of particular importance here, changes in social attitudes.

He then went on to give an example:-

The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of "cruel and unusual punishments". But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today.

He also explained more in a family context:-

40. The most obvious application of the principle in family law relates to the concept of a child's "welfare", as the word was used in section 1 of the Guardianship of Infants Act 1925, now section 1 of the Children Act 1989. The concept of welfare is, no doubt, the same today as it was in 1925, but conceptions of that concept, to adopt the terminology of Professor Ronald Dworkin, or the content of the concept, to adopt the corresponding terminology of Lord Hoffmann in Birmingham City Council v Oakley [2001] 1 AC 617, 631, have changed and continue to change. A child's welfare is to be judged today by the standards of reasonable men and women in 2017 – not by the standards of their grandparents in 1925 or their parents in 1969 ... and having regard to the ever changing nature of our world, in particular, changes in social attitudes

41. So, in my judgment, when [the section of the Act] uses the words "cannot reasonably be expected", that objective test has to be addressed by reference to the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times which Lord Bowen would have had in mind, not the man or woman on the Routemaster clutching their paper bus ticket on the day in October 1969 when the 1969 Act received the Royal Assent, but the man or woman on the Boris Bus with their Oyster Card in 2017.

So it goes both ways.

The case went all the way to the Supreme Court where the divorce was refused. You can read the court of appeal and supreme court judgments here:-

Owens v Owens (2017) EWCA Civ 182

Owens v Owens (2018) UKSC 41

excellent find on the counter argument article. One of the obvious issues (all others aside) is that the word 'reasonable' is one that is often used in law 'what would a reasonable person think/do' and I think this will be really important in any cases regarding free speech. I do think the Judiciary guards its impartiality quite fiercely but maybe not before the Supreme Court (not sure but I think they can refuse to take cases).

I wonder how many would be willing to gamble on taking some of these cases to the Supreme Court or even to appeal, given the impact of a loss?

Yes, I thought the attempt to put the argument into a racial context was not quite right. I noted this comment in particular:

The court does not appear to have thought through the meaning of these sweeping statements in future cases

Yes, I agree with you that putting it into the context of racial slurs wasn't appropriate.

In the actual judgment (which you can get from the OPs post) the court made it clear that under what is called the "Pickering-Connick" framework that first it must be a subject of public concern and then there is a balancing act to do between the employee’s right to free speech against the employer’s interests in an efficient, disruptive-free workplace.

So you can't just say anything, especially if it is likely to disrupt the running of the university. I would imagine that the common usage of racial slurs would very much disrupt the running of the university and so would not be covered as free speech.

In the judgment, the court clearly distinguished between an issue like pronouns and one of racial slurs. There are already US precedents saying that talking about gender identity is fine but using racial slurs isn't and this judgment doesn't change any of that.

It is clear that reporters writing about this haven't done much more than skim parts of the judgment.

This is from the judgment:-

To determine whether speech involves a matter of public concern, we look to the “content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48. When speech relates “to any matter of political, social, or other concern to
the community,” it addresses a matter of public concern. Id. at 146. Thus, a teacher’s in-class speech about “race, gender, and power conflicts” addresses matters of public concern. Hardy, 260 F.3d at 679. A basketball coach using racial epithets to motivate his players does not. Dambrot, 55 F.3d at 1190. “The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal
interest or opinion which impacts our social and/or political lives.” Id. at 1189.

Meriwether did just that in refusing to use gender-identity-based pronouns. And the “point of his speech” (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech “concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes.” Professors’ Amicus Br. at 1. That is, his mode of address was the message. It reflected his conviction that one’s sex cannot be changed, a topic which has been in the news on many occasions and “has become an issue of contentious political . . . debate.” See Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1051 (6th Cir. 2001).

From courts to schoolrooms this controversy continues. Recently, the Fifth Circuit rejected an appellant’s motion to be referred to by the appellant’s preferred gender pronouns—over an “emphatic[] dissent.” United States v. Varner, 948 F.3d 250, 254, 261 (5th Cir. 2020). And, on the other side, a Texas high school generated controversy when it permitted its students to display preferred gender pronouns on their online profiles. Further examples abound. In short, the use of gender-specific titles and pronouns has produced a passionate political and social debate. All this points to one conclusion: Pronouns can and do convey a powerful message implicating a sensitive topic of public concern.

The Slate report made no attempt at impartiality, but the facts spoke for themselves.

The student, Alena Bruening, later “demanded” that he refer to her as a woman. When Meriwether refused, Bruening responded: “Then I guess this means I can call you a cunt.”

Abusing a teacher with that particular sexist insult says a lot about Bruening’s attitude to women. But Bruening remains the victim in Slate’s ‘progressive’ scenario.