The University of California has encountered one of those little ironies that make the culture wars endlessly entertaining. After constructing rules under which using the wrong pronoun or a person's former name could become punishable harassment, the university has now encountered an older rule written by people considerably less interested in pronouns: the First Amendment.
A federal judge has issued a preliminary injunction restricting enforcement of the University of California's Sexual Violence and Sexual Harassment Policy against members of Defending Education, an organisation challenging the policy on constitutional grounds. The case is not finished, and the injunction is not a final declaration that the entire UC policy is unconstitutional. But the reasoning is significant because it goes directly to a question universities have spent years trying to finesse: when does protecting someone from harassment become compelling somebody else to affirm a contested belief?
The disputed UC materials dealt explicitly with "misgendering." The university's FAQ stated that prohibited conduct included intentional or repeated use of a name or pronoun inconsistent with a person's gender identity. It gave as an example a transgender man intentionally and repeatedly being called by a former name or being referred to as "Miss" or "Ms." by a professor in an intentionally mocking manner.
On its face, that example sounds less remarkable than some reports suggest. Universities have always possessed authority to deal with genuine harassment. A lecturer who follows a student around deliberately insulting and humiliating that student should not suddenly acquire immunity merely because the insults concern sex or gender.
The problem comes when the principle escapes the obvious harassment case and begins governing ordinary speech.
That is precisely what concerned the federal court. The dispute between the parties, Judge Fred Slaughter observed, was essentially about the reach of UC's rule. Defending Education argued that it covered commonplace or isolated use of birth names and pronouns corresponding to biological sex. UC argued that something more was necessary before punishment could follow. The judge concluded, at this preliminary stage, that the challengers had the better reading because it accorded with UC's own explanatory materials.
There is a world of difference between saying, "You may not systematically harass this student," and saying, "You must use the words this student requires you to use." The first regulates conduct intended or functioning as harassment. The second begins regulating belief through language.
Pronouns are unusually revealing because they look trivial until somebody refuses to use them. Then everyone suddenly discovers that they are not trivial at all.
For a transgender student, the requested pronoun may represent recognition of an identity regarded as fundamental. For another student, being required to use that pronoun may amount to being compelled to express a proposition about sex and gender that he or she does not believe. A university committed to intellectual freedom has to accommodate both people wherever reasonably possible. That used to be the purpose of liberalism.
The modern university has increasingly preferred another solution: settle the contested philosophical question administratively and then classify dissent as misconduct.
The UC controversy illustrates the difficulty perfectly. Questions about the relationship between biological sex, gender identity, language and social recognition remain subjects of enormous public disagreement. Philosophers disagree about them. Feminists disagree about them. Doctors and psychologists debate aspects of them. Legislatures fight over them. Courts continue to hear cases arising from them.
Yet university administrators somehow reached the point where they believed that the appropriate vocabulary could be prescribed through harassment policy. This is an extraordinary development for institutions supposedly devoted to intellectual inquiry.
Universities should be the places where difficult propositions can be examined precisely because society has not settled them. If gender identity is philosophically defensible, defend it. If biological sex is decisive, make that argument. If language should follow identity rather than sex, explain why. If there are circumstances in which one principle should prevail over another, debate them. The one thing a university should hesitate to do is end the argument by threatening disciplinary proceedings, which is the mainstream response now.
The irony becomes richer because universities routinely present themselves as guardians of free expression. Students are encouraged to challenge conventions, interrogate assumptions, question inherited categories and speak truth to power. Entire academic disciplines have been built around the proposition that categories regarded as natural are actually socially constructed and therefore open to criticism.
Then somebody questions the university's preferred categories. Suddenly questioning assumptions becomes harassment.
There is another irony. The contemporary university has spent decades teaching that language is power. Words, we are told, do not merely describe reality; they can construct social reality, reinforce hierarchies and reproduce structures of domination.
Very well. If language possesses that much ideological power, compelling language is not politically neutral either.
Requiring someone to say something can become as significant as preventing someone from saying it. The US First Amendment has long been concerned with both sides of that equation. Freedom of speech would be a peculiar freedom if government could not forbid you to express a belief but could prescribe the vocabulary through which you must discuss it.
That is particularly important at a public university. The University of California is not a private dinner party whose host can establish whatever conversational rules he likes. It is an institution of government and consequently operates within constitutional restrictions that private organisations do not face in precisely the same way.
Judge Slaughter relied in part upon two recent appellate decisions concerning compelled or restricted speech around gender identity. In one, the Ninth Circuit considered requirements imposed upon prospective adoptive parents concerning affirmation of children's sexual orientation and gender identity. In another, the Sixth Circuit dealt with a school pronoun policy. Those decisions provided the immediate legal background against which the UC policy was examined. The result was not abolition of protections for transgender students.
That point is important because culture-war reporting has a tendency to turn every judicial decision into total victory for one side and annihilation for the other. The injunction expressly says that UC may continue enforcing its policy to prevent abuse of transgender students just as it prevents abuse of other students.
What UC cannot presently do, with respect to the members protected by the injunction, is enforce the challenged provisions against them merely for referring to another person in a commonplace way using a birth name or pronouns corresponding to birth sex but inconsistent with gender identity.
That point is sensible regardless of one's position on transgender politics. A civil society requires ways for people with radically different beliefs to inhabit the same institutions. The transgender student should be able to attend university without being subjected to campaigns of humiliation. The Christian student, gender-critical feminist or philosophical materialist should likewise be able to attend without being forced to profess propositions about human identity that he or she regards as false.
Courtesy can accomplish much of this without law. Most people address others as they wish to be addressed because ordinary politeness makes social existence bearable. But courtesy ceases to be courtesy when an institution places disciplinary machinery behind it. At that point the issue changes from manners to authority. Universities ought to understand that distinction better than anybody.
The deeper problem is the tendency to transform contested political and philosophical positions into administrative facts. Once that happens, disagreement no longer appears as disagreement. One side is simply "affirming" people, while the other is "denying their existence." One side possesses an identity, while the other supposedly possesses only prejudice. That formulation makes debate impossible because it decides the moral character of the participants before the debate begins.
American constitutional law adds another layer that university administrators cannot simply wish away. The government has considerably greater difficulty prescribing viewpoints than a private association does. Public universities inherit that restriction along with their public funding and governmental authority.
The University of California therefore finds itself in an awkward position. Its administrators attempted to make campus life safer by regulating forms of expression they regarded as harmful. The more broadly those rules reached, however, the more they collided with constitutional protections designed precisely to prevent government institutions from determining which side of a contested argument citizens must express.
That is the irony worth savouring, not because transgender students should be mocked or harassed, but because an institution dedicated to diversity discovered that diversity includes diversity of belief.
Real diversity is troublesome. It means sharing an institution with people who think your deepest convictions are mistaken. It means encountering religious believers when you are an atheist, socialists when you are a capitalist, conservatives when you are progressive and people who believe biological sex should determine pronouns when you believe gender identity should determine them. If everyone agrees about the important questions, diversity is easy. The test comes when they do not.
Universities once had a remarkably good answer to that problem: argue about it. Protect students from genuine threats and targeted harassment, certainly, but allow adults to disagree about ideas, language, morality, politics and human nature. California's universities may now be receiving a constitutional reminder of that older tradition.
The case still has to run its course, and UC may ultimately persuade a court to uphold some or much of its policy. A preliminary injunction should not be mistaken for a final judgment.
But the principle exposed by the dispute will remain whatever happens next. A university can encourage courtesy. It can protect students from genuine harassment. It can advocate inclusion and ask members of its community to treat one another decently. What becomes much harder for a public university is turning one side of an unresolved argument about human identity into compulsory speech.
After years of teaching that words have power, the University of California has discovered that the US Constitution noticed that too.
https://www.theblaze.com/news/dead-name-misgendering-univof-ca