“As bad as it is to tell people what they can’t say, it’s even worse to tell them what they must say. Freedom of conscience and individual autonomy mean freedom to refuse to say anything that runs counter to our values and beliefs, no matter how badly those in power want us to express views and ideas they support.” —FIRE, “Pronouns, free speech, and the First Amendment”
The pattern of close elections in Wisconsin over the last several years having made plain the power of citizens in determining their outcomes, I have changed my opinion on how much my vote matters in the election of US presidents. Here’s why I will cast my vote on November 5 not based on my aspirations, but to maximize the opportunity to prevent Democrats from holding public office: the Democratic Party is bent on imposing gender ideology of the nation and compelling citizens to think and speak in falsehoods. I am a citizen of a republic with a bill of rights that protects conscience, speech, and press. I refuse to live as a serf in the New Feudalism that the Party is establishing by, among other things, compelling citizens to adopt performances of devotion prescribed by gender ideology. It’s a slow creep we must get on top of before we find ourselves living in a world where we have to refer to men as women. It matters not whether our objection and resistance to such falsehoods is religious or scientific; it’s a matter of dignity and truth.
Congress, established in Article I of the United States Constitution, and granted by that article all legislative powers, is forbidden to make any law that interferes with a citizen’s rights to conscience, speech, and press. The executive is established by Article II of the Constitution, and the President is charged with taking care that the laws of the United States are faithfully executed. This includes the fundamental law of the United States as articulated by the Declaration, Constitution, and the Bill of Rights. The power to determine whether laws are constitutional, both in content and execution, resides in the judiciary, established by Article III, in one Supreme Court and inferior courts as Congress may establish. Alongside these three branches has grown up a fourth, the Administrative State, rendered here as a proper noun, not because it’s institutional validity, but because, despite being unconstitutional, unelected, and unacceptable, it has become the most intrusive in our daily lives. It is the agencies and offices of this monstrosity, captured by progressive ideologues, that seek the changes Biden is making in the law he is obligated to administer.
As the author of the Declaration of Independence, a founding document that clarifies the fundamental rights justifying the act of throwing off a monarchy and establishing a republic in its stead, the rights to life, liberty, and the pursuit of happiness, Thomas Jefferson, in his official capacity as US President, told the Danbury Baptist Church of Connecticut, in a 1802 letter, that “the legitimate powers of government reach actions only and not opinions.” Citing the prohibition the Constitution placed on Congress from intruding on matters of conscience, Jefferson wrote that, given that “the Executive [is] authorized only to execute their acts, I have refrained from prescribing even those occasional performances of devotion.” Now, in his official capacity as US President, Biden is implementing reinterpreted Title IX regulations that contradict fundamental law by threatening to compel citizens to speak and write in ways they otherwise would not by requiring them to adhere to prescribed doctrine and performances of devotion, not those of other Christian sects, but those of gender ideology. The Danbury Baptists had written to Jefferson worried about the establishment of a national religion. In light of the imperialist ambition of gender ideology, their concern is once more relevant. Compelling employees of public institutions to affirm gender ideology and its alchemic doctrines and accompanying ritual performances, such as referring to men as women by using “preferred pronouns” in speech or in writing, not only forces citizens to act in bad faith by intentionally misgendering others, it’s a blatant of citizens’ First Amendment rights. Anybody who wants this is a fascist.
The Biden administration published its new Title IX Rule in the Federal Register on April 29. It is a massive document that takes some time going through. It includes concerns and objections from those who responded during the public comment phase required of federal rule changes. Numerous alarm bell were rung. The new rule removes the due process protections established by former education secretary and imposes gender identity policies in schools. But there were also commenters who expressed a desire that the rule changes do more to compel employee and student speech. The National Association of Scholars (NAS) has warned that gender activists are expected to use the rule to compel speech, specifically requiring the use of preferred pronouns, which the Biden administration has been mandating for its agencies despite concerns about legality and constitutionality. (I published several essays on the matter of compelled speech last year on Freedom and Reason. See NIH and the Tyranny of Compelled Speech; The War on Fact and Reason: More on the Problem of Compelled Speech; The Tyranny of Rules Governing Speech; Punishment and Discipline in Today’s Workplace.) The new Title IX regulations include provisions related to gender identity, which can influence how schools address the use of preferred pronouns.
“While the final regulations do not purport to identify all of the circumstances that could constitute sex-based harassment under Title IX, a stray remark, such as a misuse of language, would not constitute harassment under this standard,” new rule states. The “misuse of language” directly refers to concerns voiced by commenters who “believe that misgendering is one form of sex-based harassment.” In light of the definition of harassment in the document, which is standard, as “unwelcome, subjectively and objectively offensive, and sufficiently severe or pervasive to limit or deny a student’s ability to participate in or benefit from a recipient’s education program or activity (i.e., creates a hostile environment),” one expects that persistent “misgendering,” as paradoxically conveyed by gender ideology, would fall under the scope of harassment by those determined to police thought and speech. As a consequence, an individual who does not obey doctrine will be compelled to misgender individuals against his instinct to accurately and truthfully apply pronouns.
Fortunately, numerous lawsuits have been filed against the Biden administration challenging this Title IX overreach, with 26 state attorneys general leading the most significant legal actions. These challenges are bearing fruit. A Texas federal judge has blocked the Biden administration’s efforts to extend federal anti-discrimination protections to trans identifying students. In his ruling Tuesday, Judge Reed O’Connor said the Biden administration lacked the authority to make the changes, accusing it of pushing “an agenda wholly divorced from the text, structure, and contemporary context of Title IX.” Title IX is the 1972 law that prohibits discrimination based on sex in educational settings, which I will come to in a moment. “To allow [the Biden administration’s] unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress,” wrote O’Connor. “That is not how our democratic system functions.” Indeed, but Democrats, as recent history makes clear, are anti-democratic and the rule of law. “Threatening to withhold education funding by forcing states to accept ‘transgender’ policies that put women in danger was plainly illegal,” Texas Attorney General Ken Paxton said in a statement applauding Tuesday’s ruling. The Education Department said in a statement that it stands by its revised guidelines. “Every student deserves the right to feel safe in school,” the statement reads. In the progressive worldview “safe” means not only having to hear objectionable or truthful things, but also not being able to count on others to affirm the delusion of others. This illiberal desire is called “safetyism.”
Richard Nixon signed into law Title IX in June 1972. The law states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This legislation was deemed necessary in realizing the spirit of the 1964 Civil Acts, which aimed to end discrimination based on several protected classes. Sex was one of these categories. Of all the categories, it was the one most rooted in natural history. Sex was used in civil rights language because the propagandistic use of gender had not yet been widely socialized (see my essay Gender and the English Language). Because of the inherent and immutable differences between sexes, equity demanded sex-segregated opportunities and spaces where these differences precluded the application of strict equality resulting in disparate impact.
Central to these developments, and crucial to realizing the fundamental rights identified in the Declaration of Independence and in the Bill of Rights, is a proper understanding of discrimination and its application in the law. Discrimination in law is understood as occurring in the following forms: disparate treatment (intentional discrimination where individuals are treated less favorably because of their membership in a protected class); disparate impact (policies or practices that appear neutral on their face but have a disproportionate negative impact on members of a protected class); harassment (unwelcome conduct based on a protected characteristic that creates a hostile, intimidating, or offensive environment); retaliation (adverse actions taken against an individual because they have engaged in protected activities). As noted earlier, the mechanism progressives will likely use in compelling speech is discrimination in the form of harassment. However, any attempt to repurpose the definition of harassment to violate First Amendment principle is inherently authoritarian.
Freedom of conscience, speech, and press are fundamental rights that protect individuals from being compelled to express beliefs with which they disagree. This includes beliefs about gender identity and instinctive pronoun use. For United States citizens and those residing in the country, these rights are explicitly protected by the Constitution. I am free to believe, speak, and publish what I will. That also means that I do not have to believe, speak, or publish what I won’t. Speech and writing convey opinions, which, as a matter of conscience, all free men are allowed to hold and express or reject. Speech may be restricted if it incites imminent lawless action, constitutes true threats, or involves defamation or obscenity. Speech that is considered a form of harassment or violates privacy rights can also be limited. But limiting speech in this manner must be for rational cause and based upon clear and compelling evidence. Likewise, time, place, and manner restrictions are permissible as long as they are content-neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication.
In many jurisdictions and institutional settings, policies and laws have been developed or are in development to protect individuals from discrimination based on gender identity. Refusal to use preferred pronouns is said to contribute to an environment that marginalizes and harms transgender and non-binary individuals, potentially violating their rights to dignity and equal treatment. Discussions around freedom of conscience acknowledge the importance of respecting individual beliefs and convictions, but in the progressive worldview, these must be juxtaposed to the interests of those who subscribe to gender ideology. It’s typically put in these apparent innocuous terms: striking a balance between sides involves considering the rights and well-being of all parties involved. Organizations and jurisdictions have sought to accomplish this through inclusive practices that respect diverse beliefs while upholding anti-discrimination standards. Ultimately, we are told, navigating these situations requires empathy, sensitivity, and a commitment to fostering environments where all individuals can feel safe, respected, and valued.
But the tension here is not between two rational concerns, but between ideology and control on one side, and freedom and reason on the other. As somebody who doesn’t subscribe to gender ideology, who for rational reasons recognizes the doctrines as constituting a quasi-religious of neo-religious worldview, which, as an atheist I reject, how am I supposed to respond when I am unsafe, or not respected or valued? Isn’t a key part of human dignity the right to freely think and speak as one wishes as long as it doesn’t run afoul of the limits described above? Why should gender ideology trump the fundamental rights of persons that are unalienable, which means they stand outside ideology and politics as the birthright of every human beings? The check on this is to ask about whether, recognizing that Christians are a protected class in the Civil Rights Act of 1964, those who work around the Christian are required to express articles of faith indigenous to the Christian faith. To be sure, he is permitted his gold cross and armband asking, “What would Jesus do?” But he is not permitted to make me affirm his doctrines or participate in his rituals.
Of the forms of discrimination that Biden’s Title IX change, the one most likely to be used against employees is the charge of harassment. Harassment is behavior that is unwanted (not consented to) by the recipient. The conduct is based on a protected characteristic, which Biden is attempting to establish by including in the definition of sex the construct “gender identity,” the invention of a sexologist in the late 1960s (who also believed in dream telepathy). The behavior must be severe or pervasive enough to create an hostile, intimidating, or offensive environment that interferes with an individual’s ability to work or learn effectively—and it must be based on a legally recognized protected class, which in turn must represent an real and organic category. Harassment can take various forms, including verbal (such as slurs or derogatory remarks), non-verbal (such as gestures or displays), physical (such as unwanted touching), or electronic (such as cyberbullying or sending harassing emails). It can occur in workplaces, schools, public spaces, or online environments. Legal protections against harassment aim to ensure that individuals are treated with dignity and respect, and that they can learn, participate, or work in society without fear of discriminatory or hostile treatment based on their protected characteristics. It is one thing to harass a man because he wears a dress. It is quite another thing to regard that man as a woman because he desires that you affirm his gender identity.
Biden and the progressives were emboldened by a Supreme Court decision that approved the inclusion of “gender identity” within the meaning of the term “sex” is Bostock v. Clayton County (2020). In this case (which combined three cases, one involving a claim to gender identity), the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits discrimination because of sex, extends to protect employees from discrimination based on their sexual orientation or gender identity. The Court held that discriminating against an individual because of their sexual orientation or transgender status inherently involves treating them differently based on their sex. Justice Neil Gorsuch, writing for the majority, tortured language and logic in sating that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Three justices dissented. Justice Samuel Alito wrote a dissenting opinion, joined by Justice Clarence Thomas. Alito argued that the majority’s interpretation of Title VII was inconsistent with the understanding of the law at the time of its enactment in 1964. He contended that discrimination because of sexual orientation or gender identity is a separate issue from discrimination based on sex as traditionally understood. Justice Brett Kavanaugh also wrote a dissenting opinion wherein he acknowledged the significance of the issues at stake but argued that it was Congress’s role, not the Court’s, to amend Title VII to include protections for sexual orientation and gender identity explicitly. He expressed concern about the potential implications of the Court’s decision for other areas of law and urged Congress to address the issue through legislation. As John Marshall Harlan’s lone dissent in Plessy v. Ferguson (1896), history has shown is that those in the minority are sometimes right to dissent.
There is a lot at stake here and November 5, 2024 can change the direction of history. The Democratic Party is imposing on the citizens of a free republic an ideology to which most citizens do not subscribe (see Mouth Breathers in the Democratic Party). A majority of Americans believe that gender is determined at birth and is immutable. But even if no one believed that, it would be wrong to use civil rights law as a vehicle to impose upon the citizenry the ideological belief that gender is assigned at birth and can be changed. It is authoritarian to impose upon the citizens of a democratic republic any ideological system. Compelling a man to use preferred pronouns is identical in form to compelling a man to refer to the founder of Islam as the “prophet Muhammad” when speaking about him to Muslims or about Muslims.
In George Orwell’s Nineteen Eighty-Four, the Party employs extensive and pervasive techniques to compel citizens to believe whatever it dictates, regardless of reality. Through mechanisms such as propaganda, psychological manipulation, and surveillance, the Party enforces loyalty and orthodoxy. Central to this control is the concept of “doublethink,” which requires individuals to accept two contradictory beliefs simultaneously, erasing the distinction between truth and falsehood. The Ministry of Truth changes the meaning of words, revises history, and disseminates false information to ensure that the Party’s version of events is accepted as the sole reality. This relentless manipulation of truth and memory—the mass deployment of gaslighting—eradicates independent thought and reinforces the Party’s dominance, leaving citizens unable to question or resist its authority. This is the society Democrats seek. This is why my vote will be cast in the manner most likely to stop them from achieving the New Feudalism.
freedom and reason 