Weaponizing Title IX to Punish Speech

By Madeleine Kearns & Jennifer C. Braceras

Saturday, August 06, 2022

 

The Supreme Court has held that serious sexual harassment sometimes constitutes discrimination. But federal anti-discrimination law has never been a federal code of civility. It doesn’t ban any and all “offensive” speech, even when that speech is sexually charged or related to sex or sex roles. (Essentially, an employer or school is liable for sexual harassment only where it has created or tacitly condoned an environment that denies opportunities on the basis of sex.)

 

Despite this, activists have for decades weaponized Title IX, the law that prohibits sex discrimination in education, in order to police and silence politically incorrect speech.

 

Take, for example, the case of Laura Kipnis, a feminist film professor at Northwestern University. Kipnis was subjected to a lengthy, Kafkaesque harassment investigation because two students complained about an article that she wrote critiquing the climate of “sexual paranoia” on campus. Kipnis’s case was not a one-off.

 

At Syracuse University, a law student was investigated for harassment after posting comedic articles on a satirical blog. A female student at the University of Oregon was investigated and charged with harassment after yelling a dumb joke (“I hit it first!”) at a couple as they passed by her window.

 

These are just a few of the many examples of Title IX overreach.

 

Now, if the Biden administration gets its way, things are about to get much worse. A recently released “fact sheet” accompanying proposed Title IX regulations encourages schools to use an expanded definition of “harassment” that includes “unwelcome sex-based conduct.” This is of a piece with the Obama-era definition of the word that includes “any unwelcome conduct of a sexual nature,” even conduct that is not “objectively offensive.”

 

Moreover, by expanding the definition of “sex” discrimination to include discrimination on the basis of “gender identity,” the administration is applying its overbroad definition of harassment to speech about controversial gender-identity issues. Many schools are already on board, using Title IX as a weapon against those who dissent from gender ideology.

 

In 2018, for example, the Title IX office at Shawnee State University in Ohio opened a discrimination investigation of Nicholas Meriwether, a philosophy professor, for declining to use a student’s preferred pronouns. In this case, a male student had demanded to be referred to by female pronouns. The Title IX officer concluded that Meriwether’s refusal to use the preferred pronouns (while offering to refer to the student by his preferred first name or his last name) created a “hostile environment” in violation of nondiscrimination rules. Based on the Title IX report, and in order to create a “safe educational experience for all students,” the university said, it decided to discipline Meriwether.

 

But Shawnee State is a public university. So Meriwether sued, claiming violations of his constitutionally protected right of free speech and free exercise of religion. In May, the United States Court of Appeals for the Sixth Circuit held that Meriwether stated a valid First Amendment claim and could proceed with his case.

 

Shawnee State ultimately settled with Meriwether. Still, numerous other schools continue to claim that Title IX prohibits “misgendering” and requires them to investigate refusals to use preferred pronouns as instances of sexual harassment and punish those who don’t comply.

 

Stanford University, for example, will punish “misgendering” or “mispronouning” as a form of discrimination. At the University of the Pacific, a private college in Stockton, Calif., the Title IX coordinator released a statement explaining that while “unintentional misgendering is usually resolved with a simple apology,” “intentional misgendering is inconsistent with the type of community we hold ourselves to be.” The coordinator warned that “intentional deadnaming,” i.e., using a trans-identifying person’s given name, “could be a form of bullying, outing, or otherwise harassing an individual.”

 

The problem is not limited to colleges and universities. In May a Wisconsin school district opened a Title IX investigation into three eighth-grade boys who used the pronoun “she” in reference to a female classmate who had asked to be called “they” the previous month. To be clear: Title IX does not require schools to prohibit “misgendering” or to clamp down on speech about gender ideology or identity. But Biden’s proposed regulations will be used to threaten schools into doing so.

 

At least with respect to public schools, Title IX is on a collision course with the First Amendment. In the meantime, cancel culture is about to intensify.