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Pronouns Spur Fight Over Transgender, Religious Work Rights (1)

Feb. 18, 2020, 11:16 AMUpdated: Feb. 18, 2020, 4:12 PM

Nicholas K. Meriwether is an evangelical Christian who doesn’t believe an individual’s gender can be changed after conception. He also taught at Shawnee State University, a public college in Ohio.

Those two identities—one personal, one professional—clashed when a transgender student entered his classroom in January 2018.

Meriwether responded “Yes, sir” to a question, prompting the student to inform him that she is transgender and to request to be addressed as female. The professor declined, stating that the student “appears male,” and that using the combination of pronouns and last names is an “important pedagogical tool” to maintain respect and professionalism in education.

When the university warned Meriwether he could be fired under its anti-discrimination policy if he kept addressing the student as male, Meriwether sued, claiming retaliation for exercising his First Amendment rights to freedom of speech and free exercise of religion.

His circumstances and others like it have played out in workplaces across the country, highlighting yet another clash between anti-discrimination protections and religious rights that can leave employers exposed to litigation from both LGBT and religious workers. Public workers like Meriwether can also claim that their employer, the government, is violating their constitutional rights. It’s an emerging area of law, with experts only naming a handful of lawsuits with a similar fact pattern.

The U.S. Supreme Court will rule on the related issue of whether a federal law’s ban on sex discrimination includes adverse employment decisions based on sexual orientation and gender identity—a debate that has split the Equal Employment Opportunity Commission and the Justice Department.

Ongoing Litigation

Meriwether’s claims were dismissed by a federal judge in Ohio last week, but he told Bloomberg Law on Feb. 14 that “as the case continues,” he hopes it will “lead to the recovery of the basic principle that public colleges have no business compelling people to express and endorse ideological beliefs they do not hold. After all, genuine tolerance is a two-way street.” His attorneys declined to comment on if they are planning to appeal the decision, but said they’re “looking at all options at this point.”

Meriwether isn’t the only public educator to raise concerns about using preferred pronouns in the workplace. Peter Vlaming, a high school French teacher in West Point, Va., sued the school board in September 2019 in state court, after being fired for not using the preferred male pronouns for a transgender student.

Meriwether and Vlaming are represented by the Alliance Defending Freedom, a conservative Christian advocacy group involved in numerous other cases pitting religious and LGBT rights against each other. The alliance represented Colorado baker Jack Phillips in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which focused on whether Phillips could deny service to same-sex couples based on his religious beliefs. The Supreme Court in 2018 ruled that government agencies must neutrally analyze religious defenses employers use before pursuing discrimination findings.

“If a university or other public employer tells one of its employees, you must use a colleague’s preferred pronouns, we think that’s a violation of the First Amendment,” said Matt Sharp, the alliance’s senior counsel. “All of the individuals we’ve represented very much want to show respect to transgender individuals that they encounter.”

But the courts that have weighed in have dismissed some of the constitutional claims that the educators bring. The court in Meriwether’s case accepted a federal magistrate judge’s recommendations that his claims be dismissed, in part because he was engaging in official job duties when he spoke with the student. The Supreme Court has interpreted the freedom of speech clause to limit its protections to government employees speaking outside of their official duties.

Another educator, John Kluge from Indiana, saw his constitutional claims dismissed by a federal court in Indiana in January. However, his claim under Title VII of the 1964 Civil Rights Act—alleging he was unlawfully fired for raising religious objections to his high school’s pronoun policy—was allowed to proceed. Title VII prohibits both sex discrimination and religious bias.

Private sector workers have also brought Title VII claims alleging that they should receive religious accommodations from using preferred pronouns. In one such case, a worker sued Deluxe Corp. after he was fired for declining to complete an ethics compliance course because he claimed certain questions related to pronouns and other transgender issues conflicted with his religious beliefs. His religious accommodation claim remains pending in a federal court in Maryland.

“Freedom of religion and expression are important to everyone. However, these important principles do not conflict with a workplace policy that requires showing respect for coworkers or others by referring to them in a manner consistent with their deeply-held gender identity,” said Harper Jean Tobin, the policy director for the National Center for Transgender Equality.

Employers can also face Title VII discrimination suits filed by transgender workers over pronoun misuse.

Megan Milo, a transgender worker, sued Northrop Grumman Corp. and Cybercore Technologies in a federal court in Maryland, alleging that managers and co-workers “began to misgender” her after her transition in order to “diminish her gender and gender expression.”

A judge dismissed some of Milo’s claims last month, but her claims of discriminatory termination and retaliation moved forward.

Legal Framework

Paul Castillo, a lawyer with Lambda Legal, an LGBT advocacy group, said the government doesn’t violate free exercise of religion rights unless it’s targeted at a specific religion.

“If the law is neutral and generally applicable, it does not violate the free exercise clause,” Castillo said.

As for freedom of speech claims, “if your speech is pursuant to official duties, you’re essentially the government.” The clause was intended to protect individuals, not the government, Castillo said.

Private workers bringing claims of religious discrimination might face challenges under Title VII. By law, employers are required to provide a religious accommodation, but only if that accommodation doesn’t create an “undue hardship.” That hardship is defined as anything costing more than a “de minimis,” or minimal, cost.

“Here we have two employees with parallel and roughly equal claims to personal dignity by their own understanding,” Douglas Laycock, a professor of religious liberty and the law of remedies at the University of Virginia School of Law, said. “The religious claim is protected by federal law; the trans claim is not, although it is probably protected by state law in nearly half the states. I have trouble seeing undue hardship in letting the religious employee use pronouns that conform to her own sense of reality.”

The decision of whose claims would ultimately prevail comes down to the judge overseeing the case, University of Miami School of Law professor Carolina Mala Corbin said. Laycock agreed.

State Laws

At least 23 states, plus Puerto Rico and the District of Columbia, have laws banning discrimination on the basis of gender identity, according to a Bloomberg Law analysis.

The New York City Human Rights Law specifically includes “intentional or repeated refusal to use a person’s name, pronouns, or title” under gender discrimination. The state of New York also passed the Gender Expression Non-Discrimination Act in January 2019, which prohibits gender-based bias, while also codifying that the state’s Hate Crimes Law protects transgender individuals.

“Laws prohibiting gender identity discrimination have generally been understood by courts and state officials to prohibit the repeated, intentional use of a name or pronouns inconsistent with someone’s gender identity in the workplace,” Tobin said.

A Republican lawmaker in Arizona has proposed state legislation that would outlaw public schools from requiring educators to use pronouns other than those which would correspond to the sex listed on a student’s birth certificate, and prohibit penalties if an educator refuses to use a student’s preferred pronouns.

“To me, there are two sexes; male and female. Beyond that, you get into a realm of abstracts,” state Representative John Fillmore said. He introduced the legislation. “How can we penalize the teachers for the students all of a sudden coming up with an abstract?”

Potential Legal Compromise

Eckert Seamans attorney Karen Elliott said there may be a happy medium in these situations that keep them out of court: getting the employee who opposes using gender-identifiable pronouns to just call the person by their preferred first name.

“We try to understand what the legal situation, and then the practical situation, is,” she said. “Perhaps you always call that person Sally, and you could avoid the use of pronouns.”

“I think you could legally require an employee to use a name that that person requires,” Elliott said.

But using correct pronouns is a show of respect, something employers can require in a workplace, according to Luca Maurer, the director of Ithaca College’s Center for Lesbian, Gay, Bisexual & Transgender Education, Outreach and Services. Maurer is also a published author on the topics of gender identity and sexual orientation.

“You don’t have to embrace or value your coworkers’ identities and true selves, but you do have to respect them,” he said. “And if you’re not able to convey respect, you may have consequences.”

(Updates the status of Meriwether's lawsuit in paragraphs seven and 11.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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