According to the Department of Education, “misgendering” a student could violate federal civil rights law. Last month, the Department’s Office for Civil Rights announced the resolution of its investigation of California’s Taft College for creating a hostile environment under Title IX of the Education Amendments of 1972. OCR investigated the school after a male student was “misgendered” by his professors. The student, who did not notify university administrators that he identified as female, told his professors that he was “trans-femme” and preferred to be addressed by plural pronouns. (Because I’m not employed by a university and am therefore not legally compelled to speak falsely or use improper English, I refer to the student by male pronouns.)
The student’s professors tried to use the plural pronouns but didn’t always succeed. It is understandably difficult for someone delivering collegiate-level instruction to remember to refer to a man as “they” or “them.”
One professor, seemingly realizing her “mistake,” caught herself mid-word and ended up uttering “he-she.” That’s not quite “they,” so the OCR considered that a civil rights violation. The student then told another female professor that he was upset by the failure to address him as he desired. That professor apologized and met with the dean of students to discuss strategies for remembering to use the student’s “proper pronouns.” She seems mostly to have managed to do so, but occasionally she slipped up, too, again contributing to the OCR’s finding. A third female professor referred to the student by male pronouns, realized her “mistake,” and apologized, explaining that when she looked at the student, she saw his physical appearance and referred to him accordingly. Depending on OCR’s interpretation of the Supreme Court’s Bostock ruling, this could be a double civil rights violation—on both gender-identity and sex-stereotype grounds.
The funny or horrifying thing, depending on your point of view, is the faculty’s concern and exasperation in response to the student’s protestations. One professor, after meeting with the dean, had the school’s mental-health services contact the student. Another threw up his hands and exclaimed that he was “too old” to use preferred pronouns. A third asked the student if he had ever tried not thinking about his pronouns so much. A fourth suggested that if the student was so upset about inadvertent misgendering, maybe college wasn’t right for him and he should become an activist instead. The supposed civil rights violators here were mostly female, Californian professors, disproportionately a conscientious and progressive lot. Even they couldn’t quite manage to use preferred pronouns every time and seem to have found the demand annoying.
When OCR investigates a university or a school district, it threatens to pull federal funding unless the institution “voluntarily” agrees to its demands. The office uses this formidable power for institutional coercion and social transformation. Congress gave the OCR its authority to ensure that African Americans and women were treated equally in education; now, the Biden administration is using the office to force people to call men women—never mind the First Amendment.
The Taft College case suggests a few lessons. First, it’s clear that the Biden administration’s interpretation of federal civil rights law requires public schools to perform “social transitions” (treating students as if they are the opposite sex). If this rule is applied in a non-college educational environment, such transitions can occur without school administrators informing or consulting parents. States, in response, should pass “Given Name Acts,” requiring school staff to refer to students by the name and pronoun on their birth certificates or provided to the school by their parents.
Second, OCR’s very interest in this case suggests that American educational institutions may not have many genuine civil rights problems anymore. Federal law requires that the OCR investigate all legitimate claims, but the office can choose how it allocates staff members’ time. The apparent depth and commitment of this investigation suggests that either OCR is shortchanging serious problems, or that it has nothing better to do.
Third and finally, when Republicans are in power, they should work to defund the OCR. Republicans opposed the Obama-era OCR’s forcing, respectively, school districts to adopt dangerously lenient discipline policies, colleges to use kangaroo courts to prosecute alleged sexual misconduct, and schools to let males into girls’ bathrooms. During the Trump administration, however, congressional Republicans dramatically boosted OCR’s funding, probably because they didn’t want to be branded as opponents of “civil rights.” If Republicans truly oppose ideologies like critical race theory and radical gender theory, however, they should yank funding from the Department of Education’s office of wokeness enforcement.
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