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.”
