CINCINNATI, OH – In a victory for free speech, the Sixth Circuit Court of Appeals recently ruled in favor of a University of Louisville professor who was allegedly demoted, harassed, and ultimately fired for his personal views on gender confusion. Now, he can take his case to trial in District Court.
A three-judge panel
sided with Dr. Allan Josephson, a psychiatrist in the university’s School of
Medicine, who claimed six other medical school officials “retaliated” against
him for having different opinions on how to treat children with gender confusion
and for expressing those opinions at a panel discussion on the topic. According
to the court’s ruling, Dr. Josephson spoke at a Heritage Foundation Panel in
2017 in his own “individual capacity” and not on behalf of the university. At
the panel, Dr. Josephson questioned whether a child has the capacity to make
major medical decisions and then shared his views that gender confusion has the
“tendency” to diminish by the end of adolescence.
Dr. Josephson also
stated at the panel that “gender dysphoria is a sociocultural, psychological
phenomenon that cannot be fully addressed with drugs and surgery. Thus, doctors
and others should explore what causes this confusion and help the child learn how
to meet this developmental challenge.”
In the months following
the panel, university officials demoted him from
his role as a division chief to that of a junior faculty member, required him
to make disclaimers while teaching, and subjected him to other forms of
hostility and harassment. In February 2019, the university did not renew his
contract ending his 40-year academic career.
The ruling upholds a
lower court decision from the U.S. District Court for the Western District of
Kentucky that found Dr. Josephson’s speech was protected by the First Amendment
and that university officials who fired him were not entitled to immunity. The
Court noted that a “reasonable jury” could determine university officials took
adverse action against Dr. Josephson for his “protected” panel remarks. Because
of this, the Court stated Dr. Josephson’s First Amendment retaliation claims
“should go to trial.”
“The defendants argue
that they are entitled to Eleventh Amendment immunity and qualified
immunity. The district court disagreed, and so do we,” wrote Judge Andre
Mathis, who authored the Court’s opinion.
“Professors at public
universities retain First Amendment protections at least when engaged in core
academic functions, such as teaching and scholarship,” continued Judge Mathis.
“Put differently, Josephson’s speech stemmed from his scholarship and thus related
to scholarship or teaching. As such, Josephson engaged in protected speech
because it related to core academic functions.”
Judge Mathis noted that
while university officials were “worried” about Dr. Josephson getting “national
attention” and putting their “reputation at risk,” they failed to prove his
remarks had any disruptive effect on the medical school’s patient care, accreditation,
faculty recruitment and retention, accreditation, or the school’s reputation in
general.
“Absent a disruption of
government operations, a public university may not retaliate against a
professor for speaking on issues of social or political concern,” concluded
Judge Mathis. “[T]he mere ‘fear or apprehension of disturbance is not enough to
overcome the right to freedom of expression.’”
Liberty Counsel Founder
and Chairman Mat Staver said, “Firing a professor over a difference of opinion
is offensive to the First Amendment. No medical professional should have to
risk his or her livelihood to speak out on behalf of children and how best to
treat gender confusion. The evidence shows that most children grow out of it
and counseling is a medically sound option. Universities are supposed to be the
marketplace of ideas and should be held accountable when they violate the First
Amendment.”
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