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Early Court Rulings on Preferred Pronouns in the Workplace

The number of Americans identifying as transgender is sharply increasing. So too are demands for others to use individuals’ “preferred pronouns” in the workplace. Ultimately, religious believers of goodwill may disagree on whether love of one’s neighbor counsels for or against the use of preferred pronouns. But if your employer demands you use another’s preferred pronouns, and you cannot in good conscience comply, can your employer fire you?

As with many legal questions, the answer is “it depends.” What’s more, this article expresses my view, not necessarily the views of other legal professionals or of the Becket Fund for Religious Liberty, where I work. But recent court rulings have started providing more clearly concrete answers. And those answers are looking increasingly favorable for people of faith. Take two recent examples.

Meriwether v. Hartop

In Meriwether v. Hartop, the U.S. Court of Appeals for the Sixth Circuit ruled that a Christian philosophy professor couldn’t be required to use a student’s preferred pronouns.

If your employer demands you use another’s preferred pronouns, and you cannot in good conscience comply, can your employer fire you?

Professor Nicholas Meriwether taught at Shawnee State University—a small public college in Ohio—for 25 years with a “spotless disciplinary record.” Because of his sincere religious beliefs, Meriwether couldn’t use a student’s preferred pronouns. However, the university had just adopted a policy to that effect and refused to accommodate his religious beliefs. So Meriwether challenged the policy in court, claiming it violated his First Amendment rights under the Free Speech and Free Exercise clauses.

The Sixth Circuit ruled for Meriwether. Under the Free Exercise clause, the university must give “neutral and respectful consideration” to a person’s sincerely held religious beliefs. But that didn’t happen here for two reasons. First, in response to Meriwether’s request for a religious accommodation, “the university derided him and equated his good-faith convictions with racism.” Second, the university departed from its normal investigatory and disciplinary procedures, which further suggested Meriwether’s religious beliefs weren’t treated with respect.

He also prevailed on his free speech claim because “a professor’s rights to academic freedom and freedom of expression are paramount in the academic setting.” The university could not, as a result, compel him to affirm a belief with which he disagreed.

Kluge v. Brownsburg Community School Corporation

In Kluge v. Brownsburg Community School Corporation, the U.S. Court of Appeals for the Seventh Circuit initially reached the opposite conclusion. There, the court ruled that a local high school could force a Christian teacher to use transgender students’ preferred names and pronouns.

Much like in Meriwether’s case, Brownsburg High School adopted a policy that required all teachers to refer to transgender students using their preferred first names and pronouns. But Kluge, a Christian music and orchestra teacher, objected to using preferred names, explaining it would violate his sincere religious beliefs.

Kluge requested a religious accommodation from the school. Specifically, he asked he be allowed to refer to all students by their last names. At first, the school agreed this was a reasonable compromise. But as the year progressed and complaints began to accumulate, the school reversed course. Kluge would no longer be allowed to use students’ last names. Instead, the school gave him a choice: use preferred first names and pronouns or be fired.

In response, Kluge sued for religious discrimination and failure to accommodate under Title VII of the Civil Rights Act. Under this title, employers must accommodate their employees’ religious beliefs unless doing so would cause “undue hardship.” At the time, courts interpreted “undue hardship” to mean anything more than a minimal cost to the employer.

With that definition in mind, the Seventh Circuit ruled it would be a hardship to accommodate Kluge’s religious beliefs. In the court’s view, Kluge’s “last-names-only practice conflicted with the school’s philosophy of affirming and respecting all students” and his requested accommodation undermined this objective because it “resulted in students feeling disrespected, targeted, and dehumanized.” Thus, according to the court, the school didn’t have to accommodate Kluge’s religious beliefs.

More to the Story

That wasn’t the end of the story, however. Shortly after the Seventh Circuit’s unfavorable decision, the Supreme Court clarified what it means to impose an “undue hardship” in a case called Groff v. DeJoy. No longer would an employer be able to refuse to accommodate an employee’s religious beliefs because they impose minimal costs on the employer. Instead, under Groff, employers must now prove that “granting an accommodation would result in substantial increased costs.”

Because of this heightened standard, the Seventh Circuit vacated its previous decision, and Kluge’s case is now being reconsidered under this more rigorous definition.

The bottom line is this: Although much uncertainty remains, federal law requires employers to accommodate their employees’ religious convictions—including their convictions about not using preferred pronouns—unless doing so would impose substantial increased costs on the employer. Thus, individuals like Meriwether and Kluge will often have viable defenses under both the First Amendment and Title VII if an employer tries to force them to use preferred pronouns.

Encouraging Signs

Other positive signs exist too. For one, the tide of public opinion appears to be changing.

In the 2023 Religious Freedom Index—an annual survey published by my firm, the Becket Fund for Religious Liberty— Americans showed resounding support for religious pluralism. Over 80 percent of Americans (both religious and nonreligious) support the freedom to practice one’s religious beliefs even if they’re contrary to accepted majority practices. On preferred pronouns specifically, 58 percent of Americans agree that schools shouldn’t be able to force their employees to use them—up from 46 percent in 2021.

The tide of public opinion appears to be changing.

Examples from other contexts are also encouraging. For instance, when an Iowa school adopted a policy requiring students to use other students’ preferred pronouns, the U.S. Court of Appeals for the Eighth Circuit struck it down under the First Amendment in Parents Defending Education v. LinnMar Community School District. When the Obama and Biden administrations created a policy known as the Transgender Mandate that would force religious doctors and hospitals to perform gender transition procedures, two federal courts of appeals blocked the mandate from taking effect, explaining that the government can’t force doctors to violate their religious beliefs.

In the 1940s, West Virginia public schools expelled several Jehovah’s Witnesses children for declining to salute the American flag. In a famous opinion protecting their freedom of speech, associate justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, 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.” Fortunately, early returns are that this principle will hold true for preferred pronouns too.

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