Port: UND's proposed gender inclusion policy is almost certainly going to inspire lawsuits
"If you had not wrote about it, we probably would not have learned about the proposed policy," Christopher Dodson, general counsel for the North Dakota Catholic Conference, told me. "A number of students and interested persons missed the official deadline for comments, which ended Friday."
MINOT, N.D. — Last week, I wrote about a proposed policy at the University of North Dakota which, if implemented, would require everyone on campus, from students to faculty to visitors, to use a person's preferred gender identity and pronouns. It would also require that a person be given access to gendered facilities like bathrooms and lockerroom based on the gender they identify.
Per UND spokesman David Dodds, the comment period on the proposed policy closed on Friday, Oct. 22, and final discussions are now taking place before it's submitted to the school's executive council before being submitted to President Andrew Armacost for signature.
The process has been a quiet one.
"If you had not wrote about it, we probably would not have learned about the proposed policy," Christopher Dodson , general counsel for the North Dakota Catholic Conference , told me. "A number of students and interested persons missed the official deadline for comments, which ended Friday."
Though we're now outside the comment period for the policy, Dodson has written the university a letter of objection (which he's also shared with me). Whatever you make think of the Catholic Church and its outlook on social issues and politics, the letter raises some legitimate legal concerns for the school.
"We recognize that everyone should be treated with respect and that the university has a role in facilitating a respectful learning environment," Dodson writes. "However, this proposal goes beyond setting mere rules for administrative tasks. Indeed, it embraces and demands acceptance of a particular ideology about gender and language that infringes upon free speech and religious rights."
That argument seems apt to this observer, and Dodson goes on to note recent legal precedents that don't bode well for UND's policy.
Dodson references the Meriwether vs. Hartop case, a 2021 case from the 6th Circuit Court of Appeals concerning a philosophy professor who sued his university over a gender-inclusion policy that would have required him to use a student's preferred pronouns or face discipline for discrimination.
"The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment)," the court panel wrote in its opinion . "This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion."
The Foundation for Individual Rights in Education, a free-speech advocacy organization, notes that the 4th, 5th, and 9th Circuits have also issued similar opinions on this matter.
Dodson also argues that this policy could violate law recently created by the North Dakota Legislature.
"The expressed purpose — and requirement — of HB 1503, now codified as North Dakota Century Code chapter 15-10.4, is to 'protect students' rights to free speech, assembly, and expression' and only limit those rights through 'reasonable and constitutional time, place, and manner restrictions.' The proposed policy goes beyond those permitted limitations," Dodson writes. "Indeed, it reaches even into the speech and expression of students acting within their religious student organizations."
The draft policy I published does contain some exemptions for fraternities and sororities, but Dodson argues that other student groups would be required to adhere. "We are particularly concerned about the proposal's lack of any exemption for student organizations. Fraternities and sororities are provided a limited exemption, but not student organizations," he writes. "This means that UND would require student organizations to use preferred pronouns, accept expressed genders, and reject binary understandings of gender even if doing so conflicted with their sincerely held religious beliefs."
When H.B. 1503 was working its way through the Legislature, the North Dakota University System was outspoken in opposition.
"Despite the fact that our campuses have not encountered any substantiated cases of restrictions being placed on free speech, have had no speakers shouted down, no visitors assaulted, no 'disinvited' speakers, and no student complaints for at least the last 12 years, which is remarkable in the current political environment, there are still external forces that continue to perpetuate the notion that North Dakota colleges and universities are actively working against free speech and freedom of expression," griped Lisa Johnson , the North Dakota University System's vice chancellor for academic and student affairs. "While that may be true of certain coastal institutions, this is simply not true of NDUS institutions."
As a personal matter, I'm happy to use a person's preferred pronouns as a matter of simple courtesy. Still, a mandate requiring the use of preferred pronouns at threat of official disciplinary action is not in keeping with our First Amendment liberties. Beyond that, UND's requirement that a person be allowed to use a locker room or restroom in keeping with the gender they identify with seems problematic in terms of how it might be implemented.
At the very least, what seems clear is that if UND implements this policy, it will be buying itself, and thus the taxpayers, a lot of costly litigation.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at firstname.lastname@example.org .