By Steven McGuire
Real Clear Policy
Is refusing to use someone’s preferred pronouns harassment or free speech? The courts have so far sided with free speech, but the Biden administration seems determined to push the issue and threaten free expression on American campuses by applying Title IX to gender identity.
The Biden administration’s proposed new rules would prohibit “policies and practices that prevent…student[s] from participating in a recipient’s education program or activity consistent with their gender identity.” In addition, employees in teaching, advising, or leadership positions would be obligated to report any possible sex discrimination of which they are aware. In short, anyone on campus could be investigated for taking a controversial stance on issues related to gender identity, and professors could be investigated for failing to report anyone who does.
A recent Pew survey indicates that issues related to gender identity remain controversial among Americans. Regarding pronouns, only 34% said it is “extremely” or “very important” to use them, where 26% responded that it is “a little” or “not at all important,” and 18% said it “should not be done.” The report noted a significant political divide on this question: “a majority of Republicans (55%), compared with only 17% of Democrats, say using someone’s new pronouns when they’ve been through a gender transition is not at all important or should not be done.”
These data suggest the new rules would set the stage for a series of conflicts like the one involving Jordan Peterson at the University of Toronto. He famously refused to comply with a university directive and challenged Bill C-16, which proposed to make the use of pronouns not preferred by another person an element of “gender-based harassment” which could be punished civilly or criminally.
We are already seeing examples of where the inclusion of gender identity in Title IX leads in K-12 education. The Kiel Area School District in Wisconsin investigated three eighth grade students for sexual harassment because they refused to use a classmate’s preferred pronouns. The school board in Fairfax County, VA, has established a policy that punishes students for “malicious misgendering” of their peers.
In higher ed, it will lead to confusion and enforced orthodoxy, as a 2020 harassment training at Villanova University illustrates. Faculty and staff were required to complete a module entitled “Pronouns Matter.” It included a video in which a person was dismissive when it was pointed out to him that another colleague preferred to be addressed using a different pronoun.
Participants were asked how one should respond in such a scenario. The “correct” response was that the other person should have said, “It’s important to me that we honor their wishes. Of note going forward, we call people what they prefer to be called.” A further explanation added, “To keep in the spirit of putting humanity first, it’s fine for people to have their beliefs, but we are responsible for addressing behavior when we witness it, and our response must be grounded in policy.”
The message was clear: Dismissing someone’s pronoun preferences would constitute harassment. Less clear was why. Villanova’s Sexual Misconduct Policy neither mentions gender identity nor requires preferred pronoun usage, and a letter issued earlier that year by the Office for Civil Rights (under the Trump administration) stated, “By itself, refusing to use transgender students’ preferred pronouns is not a violation of Title IX and would not trigger a loss of funding or other sanctions.”
Still, Villanova went ahead with the training, which included video messages from the university’s president and Title IX coordinator, demonstrating how Title IX can lead to ambiguous policies and procedures that sow confusion and pressure faculty to get on board or remain silent.
As Laura Kipnis, who was investigated by Northwestern University for writing an essay critical of the university’s rules prohibiting professor-student romantic relationships, concluded at the end of her ordeal: “the climate on campuses is so accusatory and sanctimonious—so “chilling,” in fact—that open conversations are practically impossible.”
Universities should be places that foster debate and inquiry. Instead, the Biden administration’s proposed changes to Title IX will contribute to an atmosphere of fear and self-censorship as the kind of repressive harassment experienced by Professor Kipnis becomes more frequent and more virulent.
Steven McGuire is the Paul and Karen Levy Fellow in Campus Freedom at the American Council of Trustees and Alumni.[Editor’s note: This story originally was published by Real Clear Policy.]
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