Psych Professor’s Lawsuit Over Alleged Contract Nonrenewal Based on Speech About Gender Dysphoria Can Go Forward
From Josephson v. Ganzel, decided yesterday by Sixth Circuit Judge Andre Mathis, joined by Judges Ronald Lee Gilman and Richard Allen Griffin:
The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university’s [University of Louisville’s] medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic.
In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank [the Heritage Foundation]. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment….
Josephson sued, and the Court of Appeals allowed the case to go forward:
Josephson argues that Defendants violated his First Amendment rights when they retaliated against him based on his remarks at the Heritage Foundation event….
Public employers can permissibly limit the speech of their employees in certain circumstances. That is so because when a public employee speaks, “such speech pits the employee’s interests in speaking freely against the employer’s interests in running an efficient workplace.” Generally, the First Amendment protects a public employee’s speech if: (1) the speech was on a matter of public concern; (2) the speech was not made pursuant to the employee’s official duties; and, assuming the employee can satisfy the first two elements, (3) the employee’s interest in speaking on a matter of public concern outweighs the employer’s interest “in promoting the efficiency of the public services it performs through its employees,” Pickering v. Bd. of Educ. (1968).
Josephson spoke on a matter of public concern when he participated in the Heritage Foundation panel. Specifically, he spoke about the treatment of children with gender dysphoria. “[C]ontroversial subjects” like “sexual orientation and gender identity” are “sensitive political topics” that “undoubtedly” involve “matters of profound value and concern to the public.”
Josephson did not participate in the Heritage Foundation panel as part of his official duties with the Medical School. The Heritage Foundation invited Josephson to speak off campus and paid for his travel expenses to participate.
Article from Reason.com
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