Introduction
May teachers reject transgender students’ names and pronouns on religious grounds? Across the United States, many schools and universities have adopted policies calling on staff to use all students’ designated first names and gender-congruent pronouns. A number of conservative Christian teachers have claimed that they cannot address transgender students in this way without violating their religious beliefs. In several cases, after unsuccessful attempts by administrators to accommodate these objections, teachers who were subject to employment consequences have brought lawsuits alleging violation of their religious liberty and free speech rights.
This Note employs two recent cases to examine courts’ reasoning on the claims for religious exemption from using gender-congruent language. Typically, teachers claim that addressing transgender students according to gender identity would violate a sincere religious belief in binary, immutable sex. This Note examines these cases against the backdrop of an increasingly blurred boundary between First Amendment speech and free exercise analyses, waning concern in church-state separation by the Supreme Court, and a proliferation of religious exemptions from neutral, generally applicable laws.
The religious exercise-speech blurring is part of a doctrine I term “religious exemptionalism” that diverges from traditional First Amendment jurisprudence, which distinguished between free exercise and freedom of speech claims. This Note contends that the Court has improperly mixed principles from each line of precedent, creating a “complicity of conscience zone” that extends religious exercise protections far beyond what was deemed religious conduct in the past. This expansion is possible because courts have gradually set aside any nexus inquiry for religious liberty claims, taking only minimal steps to examine the connection between an asserted religious belief and the conduct a party seeks to avoid. Courts have thus upheld religious exemptions that lack a concrete link between a plaintiff’s tenets of faith and the requirements of law.
places the school pronoun cases in the broader landscape of First Amendment jurisprudence, as a site of conservative Christian resistance to sexual and gender minority rights. It contends that teachers’ refusal to call transgender students by their names or refer to them with gender-congruent terms is a poor fit for the free exercise framework, because speaking to or about an individual student is not religious practice, nor does it express a specific belief. The mode of speaking to a student lacks a plausible nexus with religious beliefs about the nature of sex and gender because, grammatically, personal pronouns merely refer to other nouns, while first names are inherently individual and do not convey a speaker’s beliefs.
Though courts may not evaluate the truth or content of a religious belief when they decide whether a person’s free exercise rights have been violated, this Note contends that they must evaluate whether a conflict actually exists between the sincerely held religious belief and the law or policy at issue. This Note proposes that courts revisit and strengthen the nexus inquiry in religious liberty cases by (1) evaluating whether the objected-to conduct has a concrete relationship to a claimant’s religious practice interests; (2) treating free speech claims as distinct, unrelated to the sincerity and religious nature of a claimant’s beliefs; and (3) accounting for whether the purpose of the exemption is fundamentally coercive.
Part I of this Note provides historical and legal context for school pronoun cases in terms of past litigation over transgender people’s rights, the shifting balance in free exercise versus separation of church and state at the Supreme Court, and the First Amendment rights of government employees. As background for discussion of how blurring free speech and free exercise doctrines expands religious exemptionalism, it also delineates traditional interpretation of speech versus free exercise protections and the traditional distinction between expressive conduct and pure speech.
Part II sketches the typical school pronoun cases and presents courts’ reasoning on free exercise claims for two illustrative cases. Subsequently, Part III contends that courts failed to adequately inquire into the nexus between teachers’ asserted religious beliefs and the exemptions they request. It explains how non-expressive speech-acts can cause concrete harm through differential treatment even when the words themselves lack an inherent message. Further, it critiques courts’ mixing religious liberty and free speech analyses, and concludes by arguing that even if misgendering were constitutionally protected, the balance of interests would weigh heavily in favor of educational institutions based on analysis of third party harms.
Part IV considers the broader ramifications of blurring free speech and free exercise analyses and concomitant expansion of religious exemptions. Finally, it proposes a framework for distinguishing religious exemption claims that are properly protected from those that are not. This Note ends with remarks on the implications of religious exemptionalism and blurred free speech–free exercise analyses for minority protections, including religious interests.