A policy for inclusion or compelled speech?

The University of Tennessee sent a memo to its students and faculty requesting that everyone use inclusive pronouns when referring to students, instead of traditional binary pronouns.

Image provided by the University of Tennessee Knoxville.

In the name of equality, the University of Tennessee in Knoxville (UTK) has suggested to its teachers and students that using gender-neutral pronouns, as opposed to gender binary pronouns, will help create a more inclusive campus. The Office for Diversity and Inclusion is encouraging students and faculty to use pronouns such as “ze,” “zir,” and “zirs” instead of the traditional “he” “she” pronouns. This is an effort to include all individuals, transgender and non-binary students alike, and create a campus that is welcoming and equal to all.

With UTK’s open-minded approach, the Office for Diversity and Inclusion has come up with a policy that will help eliminate any fear/anxiety for its transgender and non-binary students

The University of Tennessee is a college that prides itself on inclusion. In fact, the school’s website has a diversity page, which includes the headline “Welcoming to all and hostile to none. It’s a phrase we aspire to live by on our campus.” Also included on that page is a statement on how UTK approaches “differences in political views, religion, gender identity, values, age, abilities, and sexual orientation with open minds and infuse diversity principles beyond just the student body.”

With UTK’s open-minded approach, the Office for Diversity and Inclusion has come up with a policy that will help eliminate any fear/anxiety for its transgender and non-binary students. Increasingly in our society, the idea that ones gender does not always rest upon the sex organ they were born with is more recognized, in part thanks to stars like Lavern Cox and Ruby Rose.   Essentially, this new policy is aimed towards transgender students—students who identify with a gender different from what is typically associated with the sex they were assigned at birth—and non-binary students—students who do not identify as male or female (the traditional binary genders).

The idea behind the policy is to get rid of traditional binary pronouns, “he,” “she,” “him, “her,” in favor of gender neutral pronouns, “”Ze, “Xe,” “Zir,” “Xem,” or just “they” “them.” The Office for Diversity and Inclusion selected these gender-neutral pronouns, even though there are others available as highlighted by MIT.   As explained by Donna Braquet of the Pride Center, an on-campus center dedicated to providing resources for LGBTQ students, “We should not assume someone’s gender by their appearance, nor by what is listed on a roster or in student information systems.” Thus, transgender and non-binary students may use a different pronoun from the one associated with the sex there were assigned at birth.

UTK’s Office for Diversity and Inclusion also encourages teachers to ask everyone to provide their name and pronouns in the first days of classes, instead of assuming every student goes by their legal name and calling roll from the official roster. These requests are geared towards “alleviat[ing] [the] heavy burden for persons already marginalized by their gender expression or identity.”

Gender-neutral students on UM campus were also substituting pronouns like “ze” for “he” or “she” starting in 2009

The idea of having a more inclusive college campus is not new—the University of Michigan Student Assembly passed a resolution encouraging the use of gender-neutral pronouns, and eliminating gender-specific pronouns from the Statement of Students Rights and Responsibilities (which is still in effect to date). The resolution was a part of a movement at UM to use gender-neutral language, including professors in the Women’s Studies Department using gender-neutral language and the Department of English determining that the use of the singular “their” “them” (formally a grammatical error) was appropriate instead of “he/she.” Gender-neutral students on UM campus were also substituting pronouns like “ze” for “he” or “she” starting in 2009. Similarly, students at Pomona College in Claremont, California, voted in August 2011 to edit the student constitution in favor of only using gender-neutral language.

The University of Vermont actually gives students the option to specify the first name and pronoun they want used on campus through the “Registrar’s Name and Pronoun Web Portal.” The changes will actually appear on class rosters, grade reports, directory listings, and any place where data is received directly from the office of registrar.

Moreover, the idea of gender-neutral pronouns is likewise not new to languages. Ancient Greek and Latin both include nouns in three genders: masculine, feminine, and neuter—neuter meaning “not one or the other.” Suggesting that even ancient societies conceived genders other than the binary “male” and “female.”

Many other countries have even moved ahead of this gender-neutral movement, with the government adopting a third gender category. In 2011, Australia included a third option on its passports, allowing citizens to check “indeterminate” as their official gender. In 2014, India’s Supreme Court ruled in favor of affording people the right to identify as a third gender, and provided legal protections and rights already given to other minorities. And in this year alone, Nepal has adopted similar legislation to allow a third gender option on government issued passports, and Thailand’s constitution is being rewritten to include a chapter recognizing a third gender category ensuring equal rights to all citizens, including sexual minorities.

There has yet to be a requirement by the University to use the suggested pronouns

The gender-neutral pronouns, introduced and encouraged by UTK are simply suggestions. There has yet to be a requirement by the University to use the suggested pronouns. Even so, there is of course backlash to the “encouraged policy” at UTK, particularly from state legislators. State Senator Paul Bailey took to Facebook to criticize the inclusive statements made by UTK, stating that “I doubt parents spending over $15,000 a year expect this kind of nonsense education from the University of Tennessee.” Bill Dunn, a State House Representative, stated that people would rather have their taxes go to “a university where people can learn something, not to be brainwashed into some gobbledegook.”

There are also supporters of the new encouraging policy by UTK, including students who are part of the campus’ sexual minority, and the Vice President of the University, who stands by this policy that tries to make people feel included. 

If the policy were to be mandated by the university, there would be an argument for a free speech violation under the compelled speech analysis

The legal issue that arises out of UTK’s recent policy is the possibility of a freedom of speech violation. Specifically, there are two types of action regarding speech on college campuses that implicate the First Amendment protection: (1) action that prevents or punishes unacceptable speech (i.e. hate speech) and (2) action that requires certain acceptable speech (i.e. inclusive speech).

Typically, college campuses fall under the first category, and someone on campus is trying to prevent some form of hate speech—speech that offends any group based on race, gender, ethnicity, religion, or sexual orientation. In an effort to alleviate concerns on the minority, universities often adopt codes or policies that prohibit this kind of speech.

Although it may seem counterintuitive, hate speech is actually protected by the United States Constitution. The Freedom of Speech Clause protects most speech, including speech that offends—no matter how offensive it may be. It is only when hate speech takes the form of true threats—Watts v. United States held that the First Amendment permits a state ban on “true threats”—does it become unprotected.

However, the UTK policy falls under the second category in which the Office for Diversity and Inclusion is attempting to require certain acceptable speech. At this point, the policy posted on UTK’s diversity page is merely a suggestion, maybe even a highly encouraged policy. If the policy were to be mandated by the university, there would be an argument for a free speech violation under the compelled speech analysis. West Virginia State Board of Education v. Barnette, a 1943 United States Supreme Court case, ruled that people have a right to not be compelled to express an opinion as one’s own. Here, professors could argue that requiring them to use gender-neutral pronouns would force them to express an opinion that non-binary genders exist, which may be contrary to what they believe.

If it were to get to a point where the state or schools were mandating a policy to use gender-neutral terms, in order to survive the First Amendment, the action would have to pass the Supreme Court’s strict scrutiny test. This test requires the government to have (1) a compelling purpose for classification and (2) no less discriminatory means to achieve that purpose. Although it could arguably be reasoned that gender-neutral pronouns serve a compelling purpose—protection of a sexual minority group, a group with higher risk of suicide and self harm than sexual majority members—it would be very difficult to explain that there is no other alternative to achieve that purpose. For instance, the University of Vermont’s option that allows a student to privately choose their chosen name and pronoun would be a less discriminatory alternative.

Our society is becoming more aware of sexual minorities, and therefore some form of protections on college campuses are warranted for students who may not fit the “normal” gender categories. UTK, and other schools are taking steps to ensure these protections. However, each school must be careful in how they implement these policies, because contrary to popular belief, hate speech is in fact protected under our Constitution, while compelled speech scrutinized.

 

 

 

 

 

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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