Biden appointee limits California rules barring use of biologically accurate pronouns for trans students

A federal judge in Los Angeles has issued a preliminary injunction limiting the University of California’s (UC) ability to enforce its anti-harassment rules against students who use names and pronouns that reflect biological sex when referring to classmates who identify as transgender. 

In a court order from Sept. 15, U.S. District Judge Fred W. Slaughter, a Biden appointee, granted in part a motion by the nonprofit advocacy group Defending Education (DE), which sued on behalf of four anonymous students at UCLA, UC Irvine and UC San Diego.

The students wish to use names and pronouns consistent with a person's sex “repeatedly and at all times,” both in and out of class, to express their belief that sex is binary and that gender identity is not a separate category.

The challenged language appears in an FAQ accompanying UC’s Sexual Violence and Sexual Harassment Policy. The FAQ stated that prohibited conduct “includes intentional or repeated use of a name or pronoun inconsistent with the individual’s gender identity (i.e., misgendering).”

One example in the UC document described a person who identifies as a man who is repeatedly called by a “dead name” or mockingly referred to as “Miss” or “Ms.”

UC later revised the FAQ and removed a similar scenario from required training. But the court evaluated the original version and found that the policy still covered the students’ planned speech.

Slaughter concluded that the policy regulates speech, not merely conduct.

“The court finds that DE’s interpretation of the policy is the correct one because it tracks UC’s own materials about the policy,” the judge wrote.

Relying on two recent appellate decisions — Bates v. Pakseresht from the 9th U.S. Circuit Court of Appeals and Defending Education v. Olentangy, decided by the full 6th U.S. Circuit Court of Appeals — he held that the rules “compel speech and [are] viewpoint-based.”

UC did not argue that the policy could survive strict scrutiny, the toughest test courts use to review government limits on speech. As a result, the judge found DE likely to win its First Amendment claim.

“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury,’” Slaughter noted. He added that the public interest favors preventing constitutional violations.

The injunction is narrow. It bars UC from enforcing the policy and FAQ against DE members “for referring to another person, in a commonplace way, using pronouns or birth names that are consistent with the other person’s birth sex but inconsistent with that person’s gender identity.”

At the same time, the order states that UC remains free to enforce its anti-harassment rules “to prevent the abuse of transgender students, just as they enforce the policy to prevent the abuse of all other students.”

“It is unconstitutional for public universities to compel student speech, and we will continue to defend this principle in California and other schools across the country," DE President Nicole Neily said in a statement.

UC spokesperson Rachel Zaentz said the policy is “designed to protect members of the university community from discrimination and harassment, not to regulate protected speech.” In court filings, the university argued that the rules target conduct rather than speech. It also argued that the students’ desired speech would not violate the policy without additional circumstances.

Slaughter was appointed to the federal bench by former President Joe Biden in 2022 after serving as an Orange County Superior Court judge. He is also a graduate of UCLA. The judge ordered UC to respond to the complaint by Oct. 8. The university may appeal to the 9th Circuit. The judge did not require DE to post a bond, a payment sometimes required to cover the other side’s losses if an injunction is later found to be wrongly issued.

It’s unclear how the ruling will affect UC’s Sexual Harassment, Anti-Discrimination, Prevention and Education (SHAPE) training program.

The SHAPE curriculum is delivered through mandatory online training and testing modules focused on sexual harassment and anti-discrimination. It asserts that failing to use a person’s self-declared pronouns or protesting the presence of men in women’s restrooms creates a hostile environment and qualifies as harassment.

Students must get a perfect score on the module’s questions, which reflect these views, before they can register for the semester.