The policy Plaintiffs challenge is a portion of the University of California's policy against harassment.
asserted
Plaintiffs → challenge → harassment
Part of that policy prohibits the "intentional or repeated use of a name or pronoun inconsistent with [an] individual's gender identity."
asserted
Part → prohibit → identity
{The court follows the parties' briefing in using the term "biological pronouns" to refer to pronouns that correspond with a person's gender assigned at birth and using the term "preferred pronouns" to refer to pronouns that correspond with a person's gender identity.}
asserted
that → follow → identity
Although this case implicates sensitive matters, the fundamental dispute between the parties is a straightforward question about how to interpret UC's policy: DE contends that the policy prohibits the commonplace or isolated use of birth names and biological pronouns; while UC argues that the policy would not punish that behavior without something more.
asserted
policy → implicate → something
The court finds that DE's interpretation of the policy is the correct one because it tracks UC's own materials about the policy.
asserted
it → find → policy
With that understanding of the policy in mind, two recent cases establish that UC's policy goes too far in restricting protected speech.
asserted
policy → establish → speech
First, in Bates v. Pakseresht (9th Cir. 2025), the Ninth Circuit held that requiring prospective adoptive parents to commit to "affirming" a child's sexual orientation and gender identity, in part by using preferred pronouns, "quite clearly restrict[ed] and compel[led] speech based on both content and viewpoint."
asserted
requiring → hold → content
Second, in Defending Educ. v. Olentangy (6th Cir. 2025), the en banc Sixth Circuit enjoined a school district—which has more leeway to regulate speech than a university—from enforcing a similar policy against DE's members…
asserted
which → defend → members
.
UC's "Sexual Violence and Harassment Policy" … is over forty pages long and covers varied prohibited behaviors such as sexual battery and stalking.
asserted
Policy → cover → battery
This case concerns the hostile-environment provision, which prohibits "unwelcome sexual or other sex-based conduct [that] is sufficiently severe, persistent or pervasive that it unreasonably denies, adversely limits, or interferes with a person's participation in or benefit from the education, employment or other programs or activities of the University and creates an environment that a reasonable person would find to be intimidating or offensive."
asserted
person → concern → environment
The Policy further defines "sex-based conduct" as "acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation."
asserted
Policy → define → gender
The Policy also included a "Frequently Asked Questions" section, which read in part:
What are some examples of harassment based on gender identity covered by this Policy?
Prohibited Conduct under this Policy includes intentional or repeated use of a name or pronoun inconsistent with the individual's gender identity (i.e., misgendering).
asserted
Conduct → include → identity
For example, when a transgender man is intentionally and repeatedly called by his dead name (i.e., refers to a name that a transgender person was given at birth but that they no longer use) or intentionally and repeatedly referred to by "Miss" or "Ms." by a professor in an intentionally mocking manner.
asserted
they → call → manner
At the hearing on this matter, UC informed the court that it had amended FAQ 14 to read:
What are some examples of harassment based on gender identity that may be covered by this Policy?
uncertain
that → inform → Policy
Prohibited Conduct under this Policy may include intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity (i.e., misgendering) in circumstances where the conduct is unwelcome, a reasonable person would find it intimidating or harassing, and the conduct otherwise meet the Policy's hostile environment harassment definition.
uncertain
conduct → include → definition
For example, when a transgender man is intentionally and repeatedly called by his dead name (i.e., refers to a name that a transgender person was given at birth but that they no longer use) or intentionally and repeatedly referred to [as] "Miss" or "Ms." by a professor in an intentionally mocking manner.
asserted
they → call → manner
Students or faculty who violate the Policy are subject to discipline up to and including dismissal.
asserted
who → violate → dismissal
Apart from the Policy, UC students must also complete Sexual Violence and Harassment, Anti-Discrimination, Prevention and Education ("SHAPE") training.
asserted
students → complete → training
For some time, the SHAPE training included the following scenario as an example of conduct that creates a hostile environment:
asserted
that → include → environment
My classmate Jane continues to call me James, which was my name before I transitioned.
asserted
I → continue → me
Jane refers to me as a man and complains when I use the restroom.
asserted
I → refer → restroom
I asked her to stop, but she does not.
asserted
she → ask → her
I feel very disrespected and want this to stop.
asserted
this → feel → ?
UC declares that this example is no longer included in the SHAPE training.
asserted
example → declare → training
Four of DE's members, Students A, B, C and D (the "Students"), believe "that people are either male or female" and that gender identity is not "a coherent category separate from biological sex."
asserted
identity → believe → sex
Were the Students to "refer to a biological male as 'she' instead of 'he,' " they "would be communicating an idea and belief that" they "firmly disagree[ ] with."
asserted
they → refer → that
The Students wish "to use pronouns and given names that are consistent with a classmate's biological sex … repeatedly and at all times, including inside and outside the classroom, in the classmates' presence, and when referring to the classmates outside their presence" but refrain from doing so out of fear that they would be punished under the Policy…
asserted
they → wish → Policy
.
DE is likely to succeed on the merits of its First Amendment Claim
As an initial matter, the court finds that it should evaluate the Policy with the original version of FAQ 14 in mind even though UC amended FAQ 14 after DE filed this case.
uncertain
DE → succeed → case
UC has not shown that it is "absolutely clear" that the challenged version of FAQ 14 "could not be reasonably expected to recur" so DE's challenge to the original version is not moot.
uncertain
challenge → show → version
Moreover, the revised version of FAQ 14 continues to prohibit the intentional and repeated use of biological pronouns, albeit with reference to an objective harassment standard.
asserted
version → revise → standard
["Objective harassment standard" here appears to refer to the standard mentioned below: "'harassment that objectively denies a student equal access to a school's education resources' which universities have more space to regulate."
asserted
universities → appear → space
…
UC's Policy Regulates Speech
asserted
Policy → regulate → Speech
The "First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech."
asserted
Amendment → prevent → speech
The Supreme Court's speech-incident-to-conduct precedents "focus on" two questions: "whether the law in question restricts speech only because it is integrally related to unlawful conduct—or whether the law restricts expressive conduct only for reasons unrelated to its content."
asserted
law → focus → content
When the "only 'conduct' which the State [seeks] to punish is the fact of communication," the regulation is speech-based.
asserted
regulation → seek → communication
In Bates, the Ninth Circuit rejected the argument that the compelled use of "designated pronouns" regulates speech "incidental" to conduct.
asserted
use → reject → speech
As already mentioned, that case dealt with a state policy which required prospective parents applying for adoption to agree to "respect, accept, and support" a child's sexual orientation, gender identity, and gender expression.
asserted
which → mention → orientation
The state denied the plaintiff's application to adopt under this policy after she objected to, among other things, using adopted children's preferred pronouns.
asserted
she → deny → pronouns
Because the plaintiff's freedom to express her views "on sexual orientation and gender identity" were "severely circumscribed" and because the policy "force[d]" the plaintiff "to 'utter what was not in her mind' about a question of political and religious significance," it could not be "minimized as an incidental burden on speech."
uncertain
it → express → speech
Cf. id. ("The closest example of speech infringement that [the plaintiff] can offer in her as-applied challenge is the … recommended use of a child's preferred pronouns.") (Clifton J., dissenting); see also Meriwether v. Hartop (6th Cir. 2021) (pronouns are "a matter of academic speech" because they communicate a message about whether "[p]eople can have a gender identity inconsistent with their sex at birth").
asserted
p]eople → offer → birth
…and 27 more, not listed.
The Aporia
