A proposed University of Toledo policy that would require employees and students to use a person’s preferred first name in all verbal and electronic communication is drawing criticism by a nonprofit group that argues the proposal would run afoul of the First Amendment.
Under the university’s Inclusive Gender Practices policy, students, faculty, and staff could register their “Chosen First Name” online where it would be used for all their electronic records for transcripts, financial aid, payroll, and medical benefits. Their preferred first name would also appear on their UT “Rocket ID card” with their legal name printed on the back.
Employees and students could also register their preferred pronouns and whether they identify as lesbian, gay, bisexual, transgender, queer and/or questioning, intersex, and asexual. Those who choose to do so “will be offered connection to campus resources to strengthen their sense of belonging.”
“Affording students, faculty, and staff the opportunity to identify their Chosen First Name, pronouns, and identity in the LGBTQA+ community affirms that we recognize sexual orientation, gender identity, and gender expression as key aspects of diversity, equity, and inclusion,” the policy reads. “In addition to validating and affirming personal identities, self identification allows us to better understand our campus population.”
The university is currently accepting comments on the proposed policy through March 21. Afterward, UT spokesman Meghan Cunningham said university officials would review them and consider amending the policy based on the feedback. Comments can be submitted by going to utoledo.edu/policies.
But members of the nonprofit Foundation for Individual Rights in Education argue in a letter to the university that the policy goes too far by stating an individual’s chosen first name must be used by employees and students “in all communications.” By doing so, FIRE Program Officer Aaron Terr wrote that the policy amounts to an overbroad regulation of student and faculty speech that violates their First Amendment rights.
For example, Mr. Terr wrote that the policy broadly compels students’ speech in their use of emails, social media posts, student newspaper articles, and private conversations. He adds that, as written, students could run afoul of the policy by writing a private email that fails to use a person’s preferred first name — even if the email wasn’t sent to that specific individual — “since the policy is not limited to communications with, or in the presence of, individuals who have different legal and chosen first names.”
The policy could also have repercussions on press freedom because a student newspaper could run afoul of the policy by publishing an article that mentions an individual’s legal, rather than preferred, first name even when doing so is relevant to the story.
“While the refusal to use an individual’s chosen first name may cause offense or discomfort, well-established Supreme Court precedent leaves no doubt that this does not bring it outside the protection of the First Amendment,” Mr. Terr wrote.
He adds the policy likewise has far-reaching implications for faculty as well and argues someone’s single personal email, tweet, or blog post would violate the policy if it fails to use an individual’s first name — regardless of context — if the speech occurred on university property.
UToledo has no lawful authority to police faculty speech in this far-reaching manner. It can no more bar faculty from ever using an individual’s legal first name than it could forbid them from referring to administrators as “Big Brother,” Mr. Terr wrote.
The policy also broadly restricts speech in the classroom because “Rather than, for example, narrowly and precisely targeting speech that rises to the level of unlawful harassment, the policy bars any conceivable instance of a faculty member not using an individual’s chosen first name in the classroom, as well as in other university programs or activities.”
Lee Strang, a UT law professor since 2008, likewise shares some of the concerns outlined in FIRE’s letter and included those in his comments that were submitted for the policy through the university’s website. Some of his other concerns are how the policy will encroach on academic freedom and how educators are allowed to conduct their classrooms.
For example, he said the policy could conflict with how faculty in law and other professional schools teach because they use last names — such as “Mr. Smith” or “Ms. Smith” — because it parallels and introduces students to the professional discourse of lawyers. For pronouns, the policy states that “All UToledo community members are strongly encouraged to use an individual’s pronouns,” but there is still ambiguity as to how the policy could be applied and no indication on what might trigger disciplinary action for students or faculty alike.
“This policy seems to say ‘Sorry, you can only use first names,’” he said. “Academic freedom is harmed by that.”
He further fears that while this policy might endear the university to those who tend to support these types of policies, other parents might be turned away because the policy also allows students and employees to use whichever restrooms, locker rooms, and residence halls that match their gender identity.
Mrs. Cunningham said currently the university offers Gender Inclusive Community living in the Presidents Hall where students can live together regardless of sex, gender, gender identity/expression, or sexual orientation, emphasizing that it’s voluntary and that no student has to room with someone they don’t feel comfortable with, adding that wouldn’t change with this policy.
As to the policy itself, she said the university hasn’t yet responded to the FIRE letter, adding that UT officials would consider this feedback as well as those from the comments submitted on its website. Once the comment period is closed, it might take months before UT officials hammer out final changes to the policy or — depending on the feedback — decide to drop it altogether.
Further hampering that process is the fact that the university is still seeking a vice president for Diversity, Equity, and Inclusion who is tasked with overseeing this policy.
“We are in a period of transition right now,” she said. “We are hoping to have an announcement here soon on who that person would be ..., and this is one of the things that person would be brought up to speed on quickly.”
First Published February 19, 2022, 12:00 p.m.
