Evangelist fights campus ban for calling transgender sorority member 'male,' seeks damages

The University of Wyoming believes that publicly referring to a person's sex, in and of itself, may constitute sanctionable harassment. One of its officials could face personal liability for censoring and then banning a frequent campus visitor for doing exactly that.

Todd Schmidt, a Laramie Faith Community Church elder who often hands out literature on campus, has sued UW President Edward Seidel and Dean of Students Ryan O'Neil and is seeking a preliminary injunction against the application of UW's reservation and tabling policies to "censor disfavored views" and block his access to the table he has reserved "on a regular basis" for 17 years in the UW Union building for campus evangelism.

Sued in her individual as well as official capacity, O'Neil argues that as an executive of a state-run school she has qualified immunity from liability and that stopping Schmidt from harassing a biologically male transgender student, Artemis Langford, does not violate "clearly established" constitutional rights.

The lawsuit by Schmidt, who is represented by the Tennessee-based Center for Religious Expression, is at least the second after the UW chapter of Kappa Kappa Gamma accepted Langford into its sorority nearly a year ago, drawing international media attention. 

Seven sisters sued the sorority and its housing organization this spring for violating its bylaws, which limit membership to "lad[ies]," but Kappa Kappa Gamma responded that its founding documents do not include the "restrictive definition of the term 'woman'" used by the plaintiffs. That case is still in litigation in federal court, with motions to dismiss pending.

The sorority sisters' suit claims that Langford, who is not moving in until this fall but often visits the house for meals and "secret" rituals, has leered at sisters in common areas with "a pillow in his lap" or "an erection visible through his leggings." Langford's lawyer denied the latter claim last month as "a game of telephone" based on "a drunken story," as evidenced by screenshots of text messages among sisters.

Langford also watched them change clothes, took photos of them at a "slumber party" and asked them intrusive questions about vaginas, breasts and birth control, the sisters said in court papers. They told journalist Megyn Kelly some of the sisters are victims of sexual assault and the house has no private changing areas or locks on the showers. 

One of the sisters told National Review that 10 of 12 pledges objected to sleeping in the same room with Langford as required during initiation.

During his tabling on Dec. 2, Schmidt posted a sign that read: "God created male and female and Artemis Langford is a male." It quickly drew attention from both critical and supportive students, soon followed by Dean O'Neil, who could not give him a policy basis to hide Langford's name, according to Schmidt's June 15 lawsuit. 

O'Neil allegedly came back 20 minutes later, showing him a policy that says reservation requests can be denied due to "conflict with the mission of the University" but not explaining how his sign did that. When Schmidt objected, O'Neil threatened to call the police, the suit claims.

President Seidel sent a campus-wide message the following week detailing the incident in which "the individual [Schmidt] engaged in heated exchanges with students." While the interactions were "not in obvious violation of UW policies," the university will take "appropriate actions" if it finds "further violations," he wrote.

The president's response angered the student government, and hundreds of alumni sent a letter on Dec. 7 threatening to withhold donations or otherwise spurn UW unless it banned Schmidt for violating the tabling policy, according to the suit. 

The same day, O'Neil issued a one-year tabling ban against Schmidt based on that policy, citing "[l]anguage or actions that discriminate [against] or harass" a variety of groups and his failure to share his views "in a respectful and civil manner." 

Dean O'Neil also claimed Schmidt had ignored "multiple verbal warnings" from university staff about prior student complaints, but Schmidt said he "only recalls a couple of interactions" with staff prior to Dec. 2, neither of which related to the content of his message or students.

The Dean also said Schmidt violated a discrimination policy that, according to the suit, is not binding on community members and can't apply to Langford because the student suffered no "adverse consequences" from Schmidt's sign, as defined by the policy.

Langford launched a public campaign for student government under the same name on Schmidt's sign, according to the suit. Langford publicly touted endorsements from campus groups and won a senate seat.

O'Neil also referred to an "undisclosed report" that found Schmidt committed "discriminatory harassment" based on behavior suggesting a "trajectory which, if continued, is likely to also create a hostile environment," the suit claims.

Seidel again notified the community of the sanction, claiming "a line was crossed when a student was harassed by name." Dozens of state lawmakers and the Foundation for Individual Rights and Expression each warned UW its actions were likely unconstitutional, the Casper Star Tribune reported.

The church elder's "insincere" claim that he was suspended based on "an isolated exercise" of harmless speech ignores his "multiple instances of misconduct," culminating in "publicly harass[ing] a student based entirely on her membership in a protected class — transgender female," UW attorneys wrote in their July 24 opposition to Schmidt's motion for preliminary injunction. ("Transgender female" confuses gender identity with sex.)

The "breezeway" in which Schmidt places his table is not a "designated public forum" that is open to the public for "expressive activity," as he claims, but rather a "limited public forum" whose tabling activities are explicitly required to "enhance and complement" UW's educational purposes, the opposition argued. 

The "compelling interest" in prohibiting acts of discrimination and harassment outweighs any harm to Schmidt, who is "still free to evangelize and share his message anywhere else … otherwise permitted" on campus, UW further claims.

Schmidt's lawyers replied in court papers on July 31 that UW has no precedent to suggest a sign amounts to conduct rather than speech. The defendants simply "question the usefulness of Title VII and Title IX if Schmidt is allowed to speak freely" and try to squeeze him into precedents and federal policies applicable to school employers and employees.

He does not need to show "precise law and circumstances" to hold O'Neil personally liable, but only that the "unlawfulness" of her actions was "apparent" at the time, Schmidt's lawyers said in a second July 31 filing. 

"He wants to share his viewpoint on a public issue in a public place but O’Neil disallows his speech due to university disagreement with his opinion," which the Supreme Court has clearly proscribed, Schmidt's lawyers wrote. It was also obvious that "no reasonable official would punish individuals with policies that fail to address the complained-of behavior," as O'Neil did.

The church elder has offered no evidence that O'Neil violated his clearly established constitutional rights and hence lost her qualified immunity, UW's lawyers argued in a court filing submitted on Aug. 7. Schmidt "dances around these concepts" and instead makes insufficient "generalized allegations" that O'Neil, in his words, "should know viewpoint discrimination is unconstitutional."