Biden administration threatens free speech with Title IX gender identity rule

American campuses, which should be havens for free speech, have become infested with puritanical zealotry that does not abide dissent, especially on controversial topics such as race and gender identity. Unfortunately, free speech on campus soon may face another setback. The Department of Education has proposed a rule that would hand campus crusaders a torch and pitchfork. 

The rule would expand Title IX of the Education Amendments of 1972. Title IX was enacted to prevent discrimination and harassment on college campuses, a noble goal. But the Biden administration wants to weaponize the rule to smother dissent against the sacrosanct gender theory sweeping American schools. 

The rule would take several steps that pose a severe threat to free speech in this hot debate. First, the rule would extend anti-discrimination and anti-harassment protections to gender identity and sexual orientation. Second, it would lower the threshold for what constitutes “harassment” to the point where it reaches even stray remarks that someone deems offensive. Right now, for speech to constitute harassment under Title IX, it must be “so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity.” But under the new rule, harassing speech could be either “severe” or “pervasive,” which gives more leeway to campus bureaucrats. 

Third, the rule would reach speech far outside the school environment, such that school officials could police comments on personal social media or other contexts far from the learning environment. Fourth, the rule would allow anyone to report speech and spark an investigation, enabling the most thin-skinned on campus to launch an inquisition. 

In short, the rule would censor viewpoints that go against prevailing dogma. Consider some examples. A professor declines to use a student’s preferred pronoun because of her religious beliefs. A female student expresses discomfort sharing a dorm or locker room with someone born male. A lesbian student group declines membership to a trans female. A women’s swim coach argues in an email that it’s unfair for someone born male to compete against women. A professor argues against imposing nonbinary gender constructs on ancient civilizations and remains. These people could face expulsion or termination under the rule. 

While the topic has changed, this drive to punish dissent calls to mind another era in which government officials abused laws to punish dissent. In the late 1800s, Puritan firebrand Anthony Comstock embarked on a crusade of speech suppression as Postmaster General, using vague “obscenity” laws to punish unpopular ideas. For instance, Comstock pushed charges against feminist Victoria Woodhull, the first woman presidential candidate, for arguing against monogamous marriage in her newspaper.  

The Title IX rule poses a similar risk of heretic hunting. Like protecting the young from obscenity, stopping harassment and discrimination may sound laudable. But as history shows, sheathed within this noble veneer is a blade that crusaders won’t hesitate to draw against their enemies. Already, some schools have penalized faculty and students over speech deemed transphobic. Professor Nicholas Meriwether, a philosophy professor at Shawnee State University, faced discipline when a student complained that the professor declined to use a preferred pronoun based on his religious convictions.

Meriwether had sought a compromise by offering to refer to the student by name only, but this did not satisfy his college’s Comstocks. And a Wisconsin school recently accused three middle schoolers of sexual harassment for using the wrong pronouns for a classmate. The appetite for Comstock crusades already exists, but the Title IX rule would give zealous college administrators a full set of dinnerware.  

There is an important difference between harassment and causing offense. Undoubtedly, Meriwether’s choice offended some students. But a free society cannot remain free if it shields its people from hurt feelings and discomfort. Comstock had the same excuse, claiming that the “obscene” views he sought to crush would corrupt youth. 

Why protect campus speech that offends us? For one, if we don’t, we soon may find our own speech on the chopping block when political winds shift. Plus, students — and all of us — are far better off exposed to offensive ideas than sheltered from them. As the Supreme Court stated in 2017, “[T]he proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” But perhaps above all, free speech is a fundamental right, and to deny it to anyone — even if they say things we don’t like — is to deny it to all. 

Ethan Blevins (@ethanwb) and Alison Somin (@AlisonSomin) are attorneys at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ individual liberty and constitutional rights.