Pronouns, free speech, and the First Amendment

Some public universities and other government entities have punished or threatened to punish individuals who refuse to use others’ specified pronouns. Below, we explore the serious compelled speech issues raised by pronoun mandates.

Do pronoun mandates raise First Amendment and free speech issues?

Yes. When the government mandates what pronouns individuals must use when referring to others, it threatens to force some people to say things that contradict their beliefs. Any policy compelling the use of certain pronouns intrudes on the right to private conscience and, when it comes from the government, violates the First Amendment. 

Government-compelled speech is an especially pernicious abuse of power. In the 1943 landmark case of West Virginia State Board of Education v. Barnette, the Supreme Court declared that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Compelled speech, Justice Jackson wrote, “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” 

As bad as it is to tell people what they can’t say, it’s even worse to tell them what they must say. Freedom of conscience and individual autonomy mean freedom to refuse to say anything that runs counter to our values and beliefs, no matter how badly those in power want us to express views and ideas they support.

The refusal to use an individual’s stated pronouns may cause offense or discomfort. But this alone does not bring it outside the First Amendment’s protection. However, as explained below, repeated use of non-preferred pronouns could, in some circumstances, be part of a course of conduct that rises to the level of punishable harassment. 

Is refusing to use someone’s specified pronouns discrimination or harassment?

Absent more, refusing to use a person’s specified pronouns would not constitute punishable discrimination or harassment. Any rule punishing the mere refusal to do so would unconstitutionally compel speech.

But it’s possible that, in certain circumstances, persistent and unwelcome use of non-preferred pronouns in speech targeted at that individual could be part of a pattern of punishable conduct. In the educational context, the Supreme Court has defined actionable discriminatory harassment as conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” It’s a high but not unreachable standard intended to prevent harassing conduct while protecting speech that merely causes offense.

The refusal to use an individual’s stated pronouns may cause offense or discomfort. But this alone does not bring it outside the First Amendment’s protection.

Imagine, for example, a transgender college student named Chris uses she/her pronouns. Whenever another student, Mike, sees Chris on campus, he walks up to Chris and intentionally and repeatedly refers to Chris as “he” with the intent to cause emotional distress. Mike regularly stands outside Chris’s dorm room and loudly refers to Chris as “he” or “him.” Mike also frequently calls and texts Chris asking why Chris “pretends to be ‘she’ instead of ‘he.’” Mike continues this behavior after Chris asks him to stop. Chris becomes increasingly distressed and can’t focus on schoolwork. Mike’s pattern of conduct would likely cross the threshold for harassment.

The standard for harassment in the workplace is different. Conduct would have to give rise, considered in its totality, to a work environment a reasonable person would consider hostile, abusive, or intimidating.

Can universities require students to use each others’ specified pronouns?

Not at public universities. Students do not lose their First Amendment rights when they step onto campus. Public universities may neither compel students to use particular pronouns when referring to others nor punish use of non-preferred pronouns, absent a showing it satisfies the standard for punishable discriminatory harassment.

Insofar as private colleges not bound by the First Amendment generally commit to free speech, compelling or punishing pronoun use in ways incompatible with the First Amendment would violate those promises. 

Can a university require its faculty to use students’ specified pronouns?

Universities have somewhat greater leeway to regulate faculty speech than student speech, but that leeway is still limited by faculty’s expressive rights and academic freedom in and outside the classroom. A rule that categorically prohibits any use of non-preferred pronouns — even accidental, or outside the context of teaching in, say, a public social media post — would be overbroad in violation of the First Amendment (or a private university’s free speech and academic freedom promises). 

Ohio professor’s pronoun-use lawsuit delivers First Amendment victory

News

Shawnee State professor Nicholas Meriwether alleged that his rights were violated when administrators insisted he refer to a student using feminine pronouns.

Read More

Even in the classroom, faculty at public universities have a First Amendment interest in approaching pronouns consistent with their ideological beliefs. The only federal appellate court that has addressed the issue held that a professor had a strong First Amendment interest in refusing to use a student’s stated pronouns because they carried an ideological message with which the professor disagreed — that is, that people “can have a gender identity inconsistent with their sex at birth.” Absent more, the U.S. Court of Appeals for the Sixth Circuit held in Meriwether v. Hartop, the refusal to use a student’s preferred pronouns could not give rise to a claim of discrimination or harassment. 

The Meriwether court notably also gave weight to the fact that the professor had attempted a compromise of referring to a transgender student in his class by the student’s last name alone.

In these types of scenarios, a reasonable alternative that circumvents the use of third-person pronouns may be available to avoid unconstitutionally compelling speech.

If a university cannot impose pronoun mandates, what can it do with respect to pronouns?

Universities can encourage use of preferred pronouns, offer ways for students and faculty to identify their pronouns, and use those pronouns for university IDs, directories, and other institutional resources or communications.

What about K-12?

Although K-12 public school students do not relinquish their First Amendment rights at the schoolhouse gate, officials there have more authority over student speech than college administrators. Public K-12 schools can punish intentional and repeated use of a classmate’s non-preferred pronouns if part of a course of conduct that constitutes actionable harassment as defined above, or that otherwise interferes with the rights of others, or if it materially and substantially disrupts the learning environment. But a blanket policy punishing any use of non-preferred pronouns — regardless of intent or context — likely violates the First Amendment as overbroad. 

Can non-university government employers impose pronoun mandates?

Public employees retain First Amendment rights to speak as private citizens, so insofar a pronoun use implicates a contentious social issue, the subject cannot fully avoid touching on a matter of public concern. Government employers may not punish employees for their speech as private citizens on matters of public concern without establishing an interest in workplace efficiency (such as avoiding significant impairment to co-worker relations) that outweighs the employee’s expressive rights.

But when public employees speak on behalf of their employer or in performing job duties, their speech receives little to no First Amendment protection (except in the case of public university faculty who, as explained above, enjoy academic freedom.) So, for example, a government agency could probably require an employee to use certain pronouns when writing press releases for the agency.

Nevertheless, workplace speech that isn’t part of an employee’s job duties (think two coworkers chatting in the break room about the news) retains First Amendment protection. 

Under workplace anti-discrimination law, knowingly and repeatedly using a colleague’s non-preferred pronouns could be part of a pattern of conduct severe or pervasive enough to create a hostile work environment, but the government would not be justified in compelling employees to use certain pronouns.

How do these principles apply to private employers?

Private employers are not bound by the First Amendment, so they are generally free to make their own rules concerning employee speech, including pronoun use. Like public employers, they must comply with anti-discrimination laws, but those laws cannot force private employees to use coworkers’ preferred pronouns.

What’s the significance of newer, non-traditional pronouns?

Some believe traditional masculine/feminine pronouns are insufficient to capture the range of possible gender identities, which has led to the emergence of  “neopronouns,” such as ze/zir, and instances of individuals adopting fluid or changing pronouns. These developments create more potential for ideological disagreement and honest misunderstandings, reinforcing how pronoun mandates threaten free speech and freedom of conscience.