Federal Speech Code ‘Blueprint': It’s Not Just About Sex

By May 16, 2013


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In case there was any doubt about the profound threat that the new federal "blueprint" for sexual harassment poses to core protected speech on college campuses, consider this: It reaches not only speech of a sexual nature, but gender-related speech as well. That means discussions of topics like gender relations and sexual politics that offend somebody could qualify as harassment.   

According to the 16-page "Resolution Agreement" signed by OCR/DOJ and the University of Montana (page 2), 

the term "sex-based harassment" includes both sexual harassment, including but not limited to sexual assault, and gender-based harassment. … The term "gender-based harassment" means non-sexual harassment of a person because of the person’s sex and/or gender, including, but not limited to, harassment based on the person’s nonconformity with gender stereotypes.

As we have been reporting, sexual harassment—as broadly defined by OCR—is any unwelcome verbal conduct of a sexual nature that is subjectively offensive to the listener. Because OCR has indicated that "sex-based harassment" includes not only sexual harassment but also "gender-based harassment," any discussion of gender-related topics is subject to investigation and possible discipline if someone gets offended.

The U.S. Court of Appeals for the Third Circuit recognized this very danger when it found Temple University’s sexual harassment policy to be unconstitutional in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). The Third Circuit held, in pertinent part:

[T]he policy’s use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.

DeJohn, 537 F.3d at 317 (emphasis added) (internal citations omitted). 

Now a substantial chunk of core political and religious speech is back on the chopping block, thanks to the federal blueprint. So much for the marketplace of ideas.