From Judge Fred Slaughter Tuesday in Defending Education v. Anguiano:

The policy Plaintiffs challenge is a portion of the University of California's policy against harassment. Part of that policy prohibits the "intentional or repeated use of a name or pronoun inconsistent with [an] individual's gender identity." {The court follows the parties' briefing in using the term "biological pronouns" to refer to pronouns that correspond with a person's gender assigned at birth and using the term "preferred pronouns" to refer to pronouns that correspond with a person's gender identity.}

Although this case implicates sensitive matters, the fundamental dispute between the parties is a straightforward question about how to interpret UC's policy: DE contends that the policy prohibits the commonplace or isolated use of birth names and biological pronouns; while UC argues that the policy would not punish that behavior without something more. The court finds that DE's interpretation of the policy is the correct one because it tracks UC's own materials about the policy.

With that understanding of the policy in mind, two recent cases establish that UC's policy goes too far in restricting protected speech. First, in Bates v. Pakseresht (9th Cir. 2025), the Ninth Circuit held that requiring prospective adoptive parents to commit to "affirming" a child's sexual orientation and gender identity, in part by using preferred pronouns, "quite clearly restrict[ed] and compel[led] speech based on both content and viewpoint." Second, in Defending Educ. v. Olentangy (6th Cir. 2025), the en banc Sixth Circuit enjoined a school district—which has more leeway to regulate speech than a university—from enforcing a similar policy against DE's members….

UC's "Sexual Violence and Harassment Policy" … is over forty pages long and covers varied prohibited behaviors such as sexual battery and stalking. This case concerns the hostile-environment provision, which prohibits "unwelcome sexual or other sex-based conduct [that] is sufficiently severe, persistent or pervasive that it unreasonably denies, adversely limits, or interferes with a person's participation in or benefit from the education, employment or other programs or activities of the University and creates an environment that a reasonable person would find to be intimidating or offensive." The Policy further defines "sex-based conduct" as "acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation."

The Policy also included a "Frequently Asked Questions" section, which read in part:

What are some examples of harassment based on gender identity covered by this Policy?

Prohibited Conduct under this Policy includes intentional or repeated use of a name or pronoun inconsistent with the individual's gender identity (i.e., misgendering). For example, when a transgender man is intentionally and repeatedly called by his dead name (i.e., refers to a name that a transgender person was given at birth but that they no longer use) or intentionally and repeatedly referred to by "Miss" or "Ms." by a professor in an intentionally mocking manner.

At the hearing on this matter, UC informed the court that it had amended FAQ 14 to read:

What are some examples of harassment based on gender identity that may be covered by this Policy?

Prohibited Conduct under this Policy may include intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity (i.e., misgendering) in circumstances where the conduct is unwelcome, a reasonable person would find it intimidating or harassing, and the conduct otherwise meet the Policy's hostile environment harassment definition. For example, when a transgender man is intentionally and repeatedly called by his dead name (i.e., refers to a name that a transgender person was given at birth but that they no longer use) or intentionally and repeatedly referred to [as] "Miss" or "Ms." by a professor in an intentionally mocking manner.

Students or faculty who violate the Policy are subject to discipline up to and including dismissal. Apart from the Policy, UC students must also complete Sexual Violence and Harassment, Anti-Discrimination, Prevention and Education ("SHAPE") training. For some time, the SHAPE training included the following scenario as an example of conduct that creates a hostile environment:

My name is Mona, and I am transgender. My classmate Jane continues to call me James, which was my name before I transitioned. Jane refers to me as a man and complains when I use the restroom. I asked her to stop, but she does not. I feel very disrespected and want this to stop.

UC declares that this example is no longer included in the SHAPE training.

Defending Education is an advocacy organization with members across UC. Four of DE's members, Students A, B, C and D (the "Students"), believe "that people are either male or female" and that gender identity is not "a coherent category separate from biological sex." Were the Students to "refer to a biological male as 'she' instead of 'he,' " they "would be communicating an idea and belief that" they "firmly disagree[ ] with." The Students wish "to use pronouns and given names that are consistent with a classmate's biological sex … repeatedly and at all times, including inside and outside the classroom, in the classmates' presence, and when referring to the classmates outside their presence" but refrain from doing so out of fear that they would be punished under the Policy….

DE is likely to succeed on the merits of its First Amendment Claim

As an initial matter, the court finds that it should evaluate the Policy with the original version of FAQ 14 in mind even though UC amended FAQ 14 after DE filed this case. UC has not shown that it is "absolutely clear" that the challenged version of FAQ 14 "could not be reasonably expected to recur" so DE's challenge to the original version is not moot. Moreover, the revised version of FAQ 14 continues to prohibit the intentional and repeated use of biological pronouns, albeit with reference to an objective harassment standard. ["Objective harassment standard" here appears to refer to the standard mentioned below: "'harassment that objectively denies a student equal access to a school's education resources' which universities have more space to regulate." -EV] …

UC's Policy Regulates Speech

The "First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." The Supreme Court's speech-incident-to-conduct precedents "focus on" two questions: "whether the law in question restricts speech only because it is integrally related to unlawful conduct—or whether the law restricts expressive conduct only for reasons unrelated to its content." Chiles v. Salazar (2026). When the "only 'conduct' which the State [seeks] to punish is the fact of communication," the regulation is speech-based. Cohen v. California (1971).

In Bates, the Ninth Circuit rejected the argument that the compelled use of "designated pronouns" regulates speech "incidental" to conduct. As already mentioned, that case dealt with a state policy which required prospective parents applying for adoption to agree to "respect, accept, and support" a child's sexual orientation, gender identity, and gender expression.

The state denied the plaintiff's application to adopt under this policy after she objected to, among other things, using adopted children's preferred pronouns. Because the plaintiff's freedom to express her views "on sexual orientation and gender identity" were "severely circumscribed" and because the policy "force[d]" the plaintiff "to 'utter what was not in her mind' about a question of political and religious significance," it could not be "minimized as an incidental burden on speech." Cf. id. ("The closest example of speech infringement that [the plaintiff] can offer in her as-applied challenge is the … recommended use of a child's preferred pronouns.") (Clifton J., dissenting); see also Meriwether v. Hartop (6th Cir. 2021) (pronouns are "a matter of academic speech" because they communicate a message about whether "[p]eople can have a gender identity inconsistent with their sex at birth"). The court finds that Bates resolves the speech-incident-to-conduct issue against UC.

UC also argues that the hostile-environment provision does not regulate speech because it includes a "'reasonableness standard.'" "There is no categorical 'harassment exception' to the First Amendment's free-speech clause." Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) (cleaned up). Moreover, the original version of FAQ 14 prohibited the "intentional or repeated" use of biological pronouns without limitation to an objective harassment standard. But "a single instance of 'offensive' speech rarely rises to Title IX's harassment definition." The original version of FAQ 14 is therefore insufficiently tethered to "harassment that objectively denies a student equal access to a school's education resources" which universities have more space to regulate.

Finally, UC argues that the policy avoids regulating protected speech because it states that it "will not be interpreted to prohibit expressive conduct that is protected by … free speech and academic freedom principles." (But a savings clause that "merely restates already-existing constitutional limits … 'cannot substantively operate to save an otherwise invalid [policy].'" UFCW Loc. 99 v. Bennett (D. Ariz. 2013).

Following Bates, and recognizing that UC cannot "regulate speech under the guise of regulating conduct[,]"the court finds that the Policy regulates speech.

UC's Policy Compels Speech and is Viewpoint-Based

Having decided that the Policy regulates speech, the court looks again to Bates and Olentangy to find that the Policy compels speech and regulates based on viewpoint….

To review the Students' planned speech in this case: the Students wish to always use biological names and pronouns and to convey a message about the nature of gender by doing so. DE argues that UC compels students to use preferred pronouns which, beyond compelling speech, amounts to a viewpoint-based regulation. The court finds that DE's position is supported by case law.

Bates held that a regulation which compelled adoptive parents to "affirm a child's sexual or gender identity" and "use a child's preferred pronouns" "quite clearly restrict[ed] and compel[ed] speech based on both content and viewpoint." And Olentangy found it no less clear that a school district which forbade "using gendered language [that the student knew was] contrary to the other student's identity" "qualifie[d] as the type of 'viewpoint discrimination' that raises the most serious red flags under the First Amendment." The court follows those cases and finds that the Policy compels speech and is viewpoint-based.

UC distinguishes these cases by relying on language from Bates that the state's position would have been "much stronger" had it "simply outlawed harassment or denigration of LGBTQ children." And language from Olentangy which noted that "schools may bar abusive 'invective' that targets 'specific' students—whether transgender students, religious students, female students, Hispanic students, or any others." As UC sees it, that "is exactly what UC's Policy does." But the text of the Policy does not support UC's position. Again, the original version of FAQ 14 prohibited "intentional or repeated" misgendering without reference to an objective harassment standard. The court is therefore not persuaded that UC's Policy is meaningfully different from the regulation in Bates and the policy in Olentangy.

Because DE has demonstrated that the Policy compels speech and is viewpoint-based, the burden "shifts to [UC] to show that its actions were nonetheless justified and tailored under a strict scrutiny analysis." UC has not attempted to demonstrate that the Policy withstands strict scrutiny, so the court finds that it has not met its burden. Accordingly, the court finds that DE is likely to succeed on the merits of its First Amendment claim….

Defendants are hereby ENJOINED, during the pendency of this action, from taking any action to enforce the policies challenged by Plaintiff in this action (i.e., the Sexual Violence and Sexual Harassment Policy and FAQ #14) against Plaintiff's members for referring to another person, in a commonplace way, using pronouns or birth names, that are consistent with the other person's birth sex but inconsistent with that person's gender identity. If any Defendant takes any action against one or more of Plaintiff's members in violation of this Order, any member subject to such action may disclose the membership to the Defendant (including by making such disclosure through counsel), whereupon that Defendant must cease and/or reverse the violating action.

It shall not be a violation of this Order for Defendants to enforce the Sexual Violence and Sexual Harassment Policy to prevent the abuse of transgender students, just as they enforce the policy to prevent the abuse of all other students….

John M. Begakis (Altview Law Group LLP) and John M. Connolly, Marie E. Sayer, and Paul Richard Draper (Consovoy McCarthy PLLC).

The post UC Ban on "Intentional or Repeated Use of a Name or Pronoun Inconsistent with the Individual's Gender Identity" … appeared first on Reason Magazine.