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Why The University of Minnesota's Proposed Pronoun Policy Should Not Be Enacted

My name is Ian Smith I am a representative within the University Senate the University of Minnesota's official campus legislative and policy-making body. Recently the University’s Office for Equity and Diversity released a draft policy that is deeply troubling and must be addressed. The policy is planned to be enacted in the fall of the 2018–19 school year but is something that has been on my radar since March of 2018.

What's In the Proposed Policy?

The main parts of the the policy are:

  1. “University members may specify a name and/or gender identity that differs from the name and/or sex, sex assigned at birth, and/or gender identity listed on their legal documents. University members may specify the pronouns used to refer to them without being required to provide documentation of their gender identity.”
  2. “Individuals may access gender-specific facilities that correspond with their gender identities and may participate in University activities and programs consistent with their gender identities including, but not limited to, housing, restrooms, locker rooms, recreation services and activities, and camp programs.”
  3. “Discrimination and harassment based on gender identity or gender expression is prohibited, consistent with the Board of Regents Equity, Diversity, Equal Opportunity and Affirmative Action Policy.”
  4. “Violations of the provisions of this Policy could constitute discrimination or harassment based on gender identity or gender expression.”
  5. “Discrimination or harassment based on gender identity or gender expression may result in appropriate responsive action, including but not limited to disciplinary action up to and including termination from employment and academic sanctions up to and including academic expulsion.”

These are all direct quotes from the policy. The full draft policy can be found here.

What’s Wrong With This Policy?

At first glance the policy seems harmless and I can tell you that the people at OED think they are doing the right thing. I will only ever debate policies on what is in them and not based on ad hominem personal arguments. That means that I will not harass or berate the authors of the policy but what I will do is attack the policy for what it is. An egregious violation of first amendment rights.

The fact is that this policy should not be enacted within a public institution and here's why:

A public institution can not compel someone to say anything. Especially something an individual does not believe.

When you look at the third through fifth numbered parts of the policy I listed above you will see a breadcrumb trail that ultimately leads to the university threatening disciplinary action to anyone who does not use someone's preferred pronouns.

The whole premise of their policy is that by not using someone's preferred pronoun you are in effect discriminating or harassing that student and according to this policy that discrimination or harassment can be punished by up to expulsion.

Through this policy the university is compelling individuals to speak what the university perceives to be as just.

A Public Enactment of This Policy Is Unconstitutional and Not Supported By Current Law

Quoting from a Washington Post article Josh Blackman a constitutional law professor explains:

The Supreme Court has consistently held that requiring people to express speech and ideas is unconstitutional. The Supreme Court’s seminal pronouncement on the doctrine of compelled speech involved a student who practiced the Jehovah’s Witness faith. He was disciplined for refusing to salute the American flag and recite the pledge of allegiance. In West Virginia State Board of Education v. Barnette, the court ruled that this state action violated the First Amendment. “If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson, “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.”

The Supreme Court has consistently and unanimously reaffirmed Barnette. In Wooley v. Maynard, the justices found that a resident of New Hampshire could not be forced to display a license plate on his car that said “Live Free or Die.” In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the court held that parade organizers could not be forced to allow an LGBT group to march in the St. Patrick’s Day parade. These precedents demonstrate that the government cannot compel the expression of ideas that a speaker may not hold.

There is no precedent that the law supports a policy like this. This is a large reason why I think this policy will either be struck down or rendered toothless by the university's legal department.

This Policy Can Be Abused

Along with the argument I made above there are a few other fundamental disagreements I have with this proposed policy.

  1. Administrators Have Full Power To Expel Someone For Not Using Pronouns

There is something wrong with a policy that kicks a student out of its school and essentially ruins their lives over them not uttering a one syllable word. Along with the argument I made above there's something morally in me that can’t quite come to terms and support a policy that advocates for this. One may make the argument that “the university will only resort to that punishment in extreme cases.” But that's not how policies work out in effect. When you give administrators wide breadth in disciplinary action you must assume that they will use it. So be prepared for a student to be expelled for not moving his/her mouth.

2. Mistakes Can and Will Be Made

If a student accidentally uses the wrong pronoun with an individual that individual can under this policy report them and the student can be punished. It is another scenario that one may say will never happen or play out that way but when you are writing policy you must think of every possible scenario in which power will be yielded and the consequences that are associated with that power.

This Does Not Excuse Actual Harassment or Discrimination

This does not excuse any actual harassment or discrimination that does take place and affect trans and gender nonconforming students. I will always stand against actions taken by students that harass any student but not saying something is just not discrimination.

The Bottom Line

I myself would accommodate for any trans or gender nonconforming student that was respectful and made it clear they wanted to be referred to through a certain pronoun but I can not nor will I ever advocate that the government or the university as the arm of the government force a student to say something they do not want to say. I represent thousands of students at the University of Minnesota and to vote for a policy that would force any of them to say anything would not only be unconstitutional it would be the wrong thing to do.

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