The Intelligence Community, NASA, Navy, and Department of State... Listen up!
Pronoun lawsuit update.
Some of you may have attended our ZOOM meeting on 27 August 2024 where we detailed next steps to get our lawsuit up and running. If you didn’t attend and you are a member of F4F, no worries. We will have it available on demand for F4F members. Email Jim@Fedsforfreedom.org.
We need to define the mushy policies being pushed by our Agencies and Departments. To accomplish our task, please use below list of questions. You will need to adjust them to address the particular policies published in your place of work. We need you to ask your employer’s Office of General Counsel (OGC) or the office responsible for policy to answer the full list of questions. If they aren’t fully answered, we need you to send them back for clarifying information until they have adequately answered, or they go silent. In broad terms, we need you to begin to define the following items.
What constitutes harassing speech or a hostile work environment, in the context of pronouns?
Many of the policies threaten disciplinary action for impolite speech, harassing behavior, and a hostile work environment created by improper use of preferred pronouns. It is going to be like grabbing droplets of water on the International Space Station, but we need to begin a dialogue, forcing the administrators to put pen to paper and explicitly define the policy.
We must not forget to have our employers also define what constitutes harassing speech on computer systems. F4F members have reported that several agencies implementing speech policies for online use without really defining the parameters of “being respectful” on computer systems. In one case, an agency is poised to restrict employees’ access to work computer systems if they don’t agree to the policies in a yearly cyber security training course.
When will disciplinary measures be applied, specifically?
So they want to discipline an employee… When and how? This series of questions may end up being a whole list of what-if scenarios… and that is ok. We need your employer to be forced to document what sort of situations would be subject to disciplinary action. As we have mentioned in this Substack previously, the most insidious aspect of forced speech is how it impacts private speech. Pronouns are by definition third person. We do not use pronouns during face-to-face interactions, except when the discussion is about someone not present. This is common sense, unless you are a giant jerk and enjoy pretending people in your general vicinity don’t exist or you are the kind narcissist who uses third person to refer to oneself.
James would never conduct himself in that manner.
Mandated speech requiring the use of third person lexemes, means these literal grammar Nazis want you to self-censor your private discussions.
Please try to get your employer to admit their actual intent. If third parties overhear your private discussion about an employee suffering from gender dysphoria and is offended by your accurate description of mental illness, could you suffer disciplinary action?
What is the legal and legislative basis for the pronoun and transgender policies?
Many of you have already received responses from your employers to this pivotal question. They often site Bostock v. Clayton, and a series of executive orders. These were detailed in a previous Substack. We need your employer to specifically define the legal and legislative backing for the pronoun policies. I predict many of you will find out that the legislative backing includes the 1964 Civil Rights Act and maybe a smattering of other laws, but it won’t be the centerpiece of their defense for these policies.
RA processing: Will the process be changed?
If you hold deeply held religious beliefs on this topic, we need you to request a Religious Accommodation (RA). You can download the Intelligence Community (IC) RA here, NASA RA here, Navy RA here, and Department of State RA here.
Please ask them to describe the procedures being used to process your RA. They should be no different than policies in place prior to COVID-19. A supervisor makes an adjudication on the ease or lack thereof of implementing the requested accommodation. If it can be accommodated the process is complete and your deeply held religious beliefs are protected… At least for the time being…
Please also understand that RAs can also be written to protect deeply held philosophical beliefs. There are protections for philosophical beliefs that are genuinely held and affect how a person lives their life.
If you want to take the deep dive on what we have already published on the Pronoun issue. Please see below posts.
Next steps to actuate litigation.
A religious accommodation is not required to join the lawsuit, but it is the initial part of our litigation plan. Employees with deeply held beliefs need to attempt to exhaust employee-employer dispute mechanisms prior to litigation, if and where possible.
If you just don’t like the policy and think it is scientifically wrong… keep in mind, you have a right to submit an RA on philosophical grounds. There is nothing more fundamental than the difference between male and female. Our entire lives are predicated on, and society is organized by that very basic fact. Our education, culture, religion, and society has objectively been built around the differences between male and females and XY and XX chromosomes.
There is nothing more genuinely held, nor is there another fact more fundamental to our daily lives. It is insane we have to litigate to prove it.
If you still don’t see the need, you can still participate, but it is best if you have been subject to or are in imminent danger of disciplinary action as a result of your refusal to participate in pronoun policies in the workplace.
An RA must include a reasonable middle ground. I know that may sound like compromise, but it isn’t. We must allow the government to show their hand. They have no intention of allowing for a compromise, and will continue to trample on your rights and protections regardless of any reasonable solution we offer. We have to let them put their hypocrisy on display.
This means this will not be a quick process. It could take years. Let me foot stomp that point.
We need you actively engaged over the long term.
But why will it take that long?
Standing.
We must be able to show that an employee has suffered harm and the rights of a protected class have been abused. There are of course First Amendment and freedom of speech issues at play as well, but that too demands standing in court. In Addition to harm, standing requires the individual or group is filing in the appropriate venue. It may also call for the exhaustion of administrative procedures designed to resolve the issue.
Exhaustion is the key word here.
We get it. If you have been following the EEO class action cases initiated by Feds for Freedom, complainants in those cases are spent. It has taken a really, really long time. In the case of mandated pronoun litigation, Alliance Defending Freedom (ADF) is providing pro bono support. Financing the case is not the issue, we just need you to remain steadfast and stay on top of policy and administrative changes.
More important, we will be filing the case as an organization. We don’t need thousands of plaintiffs, just enough to file in court with an ability to show harm. We have a number of very good plaintiffs lined up, but we still need more.
You can participate even if you aren’t in danger of imminent disciplinary action, but you may have to be patient and wait while we continue to line up our team.
In ADF we trust.
ADF has been providing ongoing support and drafted the RAs being used to advance our case. They have shown success in recent court cases discussed below, and those successes are supported by other nationwide cases that reaffirm Title VII protections. ADF provided some additional context.
There have been some recent decisions, most notably Groff, that make it more difficult for employers to deny religious accommodations under Title VII. Previously, employers could show undue hardship (and thus escape the duty to accommodate) by showing some de minimis additional cost, which really amounted to any sort of inconvenience. Now they must show some additional cost or expense that is substantial in the overall scope of its business. That said, what this decision means is still being sorted out in the lower courts. In ADF’s Kluge case, for example, a federal district court ruled that the complaints of seven students and a handful of teachers amounted to an undue hardship, even under Groff’s new standard. We are appealing, of course, but this illustrates how Groff does not eliminate the other side’s desire to fight. And of course, how all this works in the national security space also remains to be seen.
ADF also has a recent victory in Geraghty v. Jackson Local School District, which is the latest ADF First Amendment victories on the transgender terminology issue. Most of ADF’s litigation on this issue so far has arisen in the educational context, with cases like Geraghty being at the K-12 level and cases like Meriwether being at the university level. Again, how these precedents will translate to other contexts remains to be seen.
In summary, The court disposed of dueling motions for summary judgement, and it still goes to trial.
The court held: ... [W]hen Defendants compelled Geraghty to use the students’ preferred names and pronouns, they forced her to “wade into a matter of public concern.” ... The final question is whether Geraghty’s “interest in” remaining silent on a “matter of public concern” outweighs “the interest of [Defendants], as [Geraghty’s] employer, in promoting the efficiency of the public services it performs through its employees.”...[But] Geraghty’s compelled speech was not pursuant to her ordinary job duties...
Stay frosty F4F members. We are still fighting for your rights and ADF is bringing in the big guns.
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