Radical feminists raise alarm about lawyer speech code that enforces gender ideology

Pennsylvania's implementation of a revised American Bar Association anti-bias "model rule" that regulates lawyer speech, the subject of an ongoing legal fight, worries Christian, conservative and First Amendment legal groups.

Add gender-critical feminists to that list.

The Women's Liberation Front, a self-described radical feminist group that opposes gender ideology, filed a friend-of-the-court brief with Concerned Women for America in the 3rd U.S. Circuit Court of Appeals against the Pennsylvania Supreme Court for adopting a version of Model Rule 8.4(g), claiming it would violate the First Amendment rights of WoLF attorneys.

The brief was written by UCLA law professor Eugene Volokh for WoLF and Concerned Women for America.

"WoLF and CWA see eye to eye that a direct threat to women in Rule 8.4(g) is intimidating attorneys from truthfully declaring what a woman is,” said Penny Nance, CEO and President of CWA, the nation's largest public policy women's organization in a press release. "Protecting the status and dignity of women and girls on the basis of immutable sex characteristics is a shared interest that transcends politics. CWA proudly joins with our allies on the Left in this brief to fight for the fundamental right to speak freely and openly that a male is male and a female is female. Lawyers cannot be held hostage by political activism that seeks to redefine basic facts as harassment or hate speech."

Reuters reported the Pacific Legal Foundation (PLF) and Alliance Defending Freedom also recently filed 3rd Circuit briefs against the lawyer speech code, which has been blocked in federal court since December 2020.

New York considered adopting the lawyer speech code despite the legal wranglings, prompting New York criminal defense lawyer Scott Greenfield to claim it would require "every lawyer be as woke as you want them to be, no matter what the ramifications." 

Model Rule 8.4(g) includes gender identity as a protected class under the "Rules of Professional Conduct," subjecting lawyers to sanction for "conduct that the lawyer knows or reasonably should know is harassment or discrimination." It expands the prior version to cover "conduct related to the practice of law," even outside of court or client representation.

U.S. District Judge Chad Kenney issued a fresh injunction this spring after the Pennsylvania Supreme Court amended the rule, saying its ban on socioeconomic discrimination could be used to punish a lawyer for "showing aversion" to a colleague's "worn-out shoes at a bench bar conference." 

PLF's 3rd Circuit brief says an attorney could be punished for saying University of Pennsylvania transgender athlete "Lia Thomas should not participate in women's swimming," on the grounds that it constitutes "hostility based on gender identity."

"Obviously we don't want attorneys who are discriminating against people being really bigoted and biased," but the Pennsylvania code could get lawyers thrown off their cases or possibly fired if they misgender someone, for example, WoLF Executive Director Mahri Irvine said on the John Solomon Reports podcast.

"One woman who's our plaintiff was sexually assaulted by a male inmate" who identifies as a woman in a women's prison, Irvine said, referring to its federal lawsuit against California's gender-identity prison law. "He pushed his body and his genitals up against her and she reported to the prison," which told the victim "it was a woman who had assaulted her instead of a man.

"And so one of our sort of strategic thoughts with our own lawsuit is, are we going to get to the point in our lawsuit where we're going to be told we have to use female pronouns to refer to men? That's exactly what this proposed rule could potentially do. If an attorney is arguing a court case talking about a transgender-identified male, a judge could potentially say 'You're being biased because you're referring to this "trans woman" as a man. How dare you? You're demonstrating bigotry here.'"

In a statement on Model Rule 8.4(g) released last week, WoLF said: "This new rule is a massive and novel intrusion into the beliefs and speech of lawyers. Such a rule, if adopted, would mean any legal professional could face discipline from their State Bar Association for saying anything that might be offensive to a person from a protected class — even if that person is merely engaging in discussion at a lecture, or at an attorney dinner event, or any number of other contexts."

The rule could potentially force lawyers to "basically promote and go along with a political ideology," Irvine explained. "Or you could even say it's a faith-based belief system that they don't believe in. But they could actually start to be coerced in the courtroom to promote this idea of gender ideology and the fact that humans can change sexes, even if they don't believe that."

While the ABA has said "a lawyer may raise a legal challenge (or simply not comply) if he or she has a good-faith belief that no valid obligation exists," WoLF's statement says, the gender-critical feminist group "absolutely believes that there is no valid obligation to ever lie in court (or anywhere) about which sex a person is, or to comply with demands to adhere to an ideology that believes in gendered souls."

WoLF also worries the rule could create loopholes for exaggerated or made-up stories of transphobia. Irvine referred to a University of Southern Maine professor who was unsuccessfully targeted for firing for telling her class there are only two sexes.

"The graduate students all claimed they were being harmed by her and they walked out of her classroom," she said. "So what this proposed new ethics rule could do is basically set up the same situation in law schools all across the country."