I am a representative in the University of Minnesota’s Student Senate, the campus legislative and policymaking body. Recently, the university’s Office for Equity and Diversity (OED) released a draft policy that is deeply troubling and must be addressed (“He, she or ze? U wrestles with inclusivity rules,” front page, July 15). If passed following debate, the policy is to be enacted in the fall, though it has been on my radar since March.
The main parts of 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.”
6. “University members and units are expected to use the names, gender identities, and pronouns specified to them by University members.”
The full draft policy can be found at tinyurl.com/u-draft-policy.
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What’s wrong with this policy?
At first glance, it seems harmless, and I can tell you that the people at OED should not be vilified or harassed over this. They are doing what they perceive to be the right thing. I will only debate policies based on their substance rather than entangling myself in ad hominem arguments. The fact is that this particular policy should not be enacted within a public institution, and here’s why:
• A public institution cannot compel someone to say anything. Especially something an individual does not believe.
When you look at the third through sixth 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 pronoun.
The whole premise of the policy is that by not using someone’s preferred pronoun, you are in effect “discriminating against” or “harassing” that student, and according to this policy that “discrimination” or “harassment” can be punished by actions up to expulsion.
• Through this policy the university is compelling individuals to speak what it perceives as just. But the enacting of such a policy by a public institution would be unconstitutional and not supported by current law.
In an article published by the Washington Post, Josh Blackman, a constitutional law professor, explains:
“The Supreme Court has consistently held that requiring people to express 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 vs. 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 vs. 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 vs. 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 significant reason why I think this policy will either be struck down or rendered toothless by the university’s legal department. Someone suing the university over an issue like this will win every time.
There are a few other fundamental disagreements I have with the proposed policy, including:
• 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 their not uttering a one-syllable word. There is something morally in me that can’t quite 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 speaking the exact words the university wants him or her to say.
• Mistakes can and will be made.
If a student accidentally uses the wrong pronoun with an individual, that individual can, under this policy, report the incident, 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.
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My position does not excuse any actual harassment or discrimination that does take place and affect trans and gender-nonconforming students. I will always stand against discriminatory acts that are perpetrated at this university, but for students not to speak the words the university wants them to say is just not discriminatory.
The bottom line: I would make accommodations for any trans or gender-nonconforming student who made clear a desire to be referred to through a certain pronoun, but I cannot nor will I ever advocate that the government or the university as the arm of the government force any 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 supporting an unconstitutional policy, but also contrary to the principles that universities across the nation were founded on.
Ian Smith, a member of the University of Minnesota’s Student Senate, is studying finance and accounting in the Carlson School of Management.