Constitutional? Feds and judges compel employees, litigants to use preferred gender pronouns

The Department of Health and Human Services and several federal judges are compelling federal employees and litigants to identify others by their preferred gender pronouns, raising First Amendment and judicial impartiality issues.

The HHS mandate came out Wednesday and explicitly refers to National Coming Out Day, which was recognized by a dozen Democratic congressional members. 

The mandate appears to be based on an Office of Personnel Management "guidance" document from March that claims agencies are "encouraged to create or update" gender-identity policies but implies it's not optional, citing President Biden's executive orders and the Supreme Court's arguably inapplicable Bostock ruling.

At least five district judges in the 10th U.S. Circuit Court of Appeals "explicitly require" litigants to use "the selected pronouns of counsel, litigants and witnesses" in court, and another two "pressure" them to do so, Kansas Attorney General Kris Kobach told Chief Judge Jerome Holmes, appointed by President George W. Bush, in an Oct. 6 letter.

The practices not only frustrate "maximum clarity and accuracy" in court filings but also implicate the rights of lawyers who reject subjective pronouns "for both religious and non-religious reasons" and imply "a prejudgment on issues in litigation," such as challenges to state laws on gender identity, Kobach said, requesting "informal corrective action" from Holmes.

"The courtroom is no place to dismantle science, butcher the English language, and deny constitutional rights in order to spare an individual’s feelings,” Kobach said in a press release Tuesday. His office didn't respond to a request for an update.

Roger Severino, who led the HHS Office for Civil Rights in the Trump administration, posted screenshots of the HHS email to employees Wednesday on its new "Gender Identity Non-Discrimination and Inclusion Guidance," also described as a "policy."

Agency leaders including transgender Assistant Secretary for Health Rachel Levine, but not Secretary Xavier Becerra, addressed employees in a Sept. 28 YouTube video, linked from the email, on HHS's internal YouTube account. It's unlisted, meaning the video doesn't show up in searches or HHS's account page.

The email and video say the directive ensures that employees can be "their whole selves" at work, including the pronouns used to address them.

"We want you to be your authentic self every day, regardless of your gender identity," which means HHS must be a "welcoming, supportive environment where all employees feel safe coming to work," Deputy Secretary Andrea Palm says in the video.

The policy requires "department-level coordination for EEO [Equal Employment Opportunity] protections across HHS" and "also makes clear that all employees should be addressed by the names and pronouns they use to describe themselves," Assistant Secretary for Administration Cheryl Campbell says. Levine warns that "all supervisors and managers are responsible for helping to ensure it is fully implemented."

HHS has not publicly posted the policy anywhere Just the News can find and did not answer queries Thursday. HHS news releases touted World Mental Health Awareness Day on Tuesday but not National Coming Out Day, which is explicitly cited in both the email to employees and by Levine in the video. 

OPM didn't answer queries about other agencies updating guidance, any deadlines and how voluntary the encouragement is.

Public interest law firms that have challenged similar mandates aren't saying yet whether they'll sue.

"This unnecessary, blanket mandate" on HHS employees "seeks to impose a radical ideology" that violates the First Amendment and "undermines Americans’ freedom to say what they believe," Alliance Defending Freedom senior counsel Matt Bowman told Just the News.

Though the regulatory term "guidance" generally refers to an agency's nonbinding interpretation of its authority, it has also been used as a faster but legally questionable talternative to drawn-out regulatory rulemaking.

The Obama administration used "Dear Colleague" Title IX guidance in 2011 to threaten to strip funding from colleges that did not remove protections for accused students in sexual misconduct proceedings – a sea change that sparked hundreds of court rulings against or settlements with colleges.

The Trump administration rescinded the guidance in 2017 and issued a binding rule in 2020, after a proper regulatory proceeding, that formalized protections for accused students.

The Biden administration is likely to restore many Obama provisions under its own rulemaking, officially scheduled to conclude this month, despite ongoing skepticism from courts.

"HHS has tried this trick multiple times," Severino told Just the News, arguing that the use of the word "safe" in the email and video means that preferred pronoun usage is "mandatory" and noncompliance is a fireable offense. "This is an aggressive move by HHS to flush out people who disagree with gender ideology."

They will be "forced to deny biological realities with their own words or face firing," Severino wrote in an X thread. "Let’s see how tolerant this admin will be of those who will seek an opt-out out of faith or compelled speech concerns," he said, calling on HHS employees to request accommodations based on the Free Speech and Free Exercise clauses.

"They want to have it both ways and they cannot," Severino told Just the News. If HHS denies accommodation requests through the Merit Systems Protection Board it will face litigation, and if it tells employees they don't have to file requests, the guidance is toothless.

Federal courts in Texas and North Dakota have looked askance at the Equal Employment Opportunity Commission and HHS invoking the Supreme Court civil rights case Bostock to smuggle in farther-reaching gender identity policies, Severino noted. A federal judge in Tennessee issued a preliminary injunction against similar guidance by the Education Department and EEOC in response to a challenge by several states.

This is just "the latest radical gender identity policy coming out of the Biden-Becerra HHS," Rachel Morrison, director of the HHS Accountability Project at the Ethics and Public Policy Center, told Just the News. 

She wrote a law review article about the administration's gender identity policy a year and a half ago and more recently analyzed a proposed HHS privacy regulation with similar relevance.

Morrison pointed Just the News to a similar Sept. 29 proposal by EEOC to update workplace harassment guidance. Unlike the HHS employee-only policy, this guidance emphasizes it does not have "the force and effect of law" and public input is accepted through Nov. 1.

It would deem "intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity," and "denial of access to a bathroom or other sex-segregated facility" on the same basis, as "sex-based discrimination." One example: a supervisor calling a biologically male worker who identifies as a woman "dude."

"This is absurd," said Morrison, a former EEOC attorney. "No one should be compelled by the government to speak untruths by using pronouns that reject the biological reality of a person’s sex as male or female."