Manuel Triano López
The United States Supreme Court has held that the Fourteenth Amendment to the federal Constitution directs the government to treat alike “all persons similarly situated.” Accordingly, the judiciary reviews with heightened scrutiny laws or policies that discriminate against individuals in a so-called “protected class.” Although the Court still has not ruled on whether transgender individuals constitute a protected class for Fourteenth-Amendment purposes, it has ruled that the category of “sex” in Title VII (a federal law on workplace discrimination) includes transgender individuals. Consequently, an employer may not dismiss an employee merely for being transgender. In 2021, the Education Department extended this protection to transgender students under a 1972 law that forbids sex-based discrimination in institutions of learning receiving funds from the federal government.
These institutions could therefore invoke that 1972 law to justify disciplinary measures against professors who violate preferred-gender-pronoun policies, i.e., those that require professors to address their transgender students with the gender pronouns (“he,” “she,” etc.) that these students prefer. From a legal standpoint, however, the disciplinary measures could clash with the professors’ constitutional right to free speech, which includes the right to refrain from speaking. In other words, the government —in this case, represented by public institutions of learning— may not compel people to affirm a belief with which they disagree.By analyzing relevant court rulings handed down over the last two years, this presentation aims at resolving the tension between a public educational institution’s interest in eradicating sex-based discrimination against transgender students and a professor’s constitutional freedom from compelled speech.
Keyword: Public Education, Free Speech, United States of America, Transgender Community