In a decision issued on Tuesday, Judge Fred Slaughter weighed in on Defending Education v. Anguiano, addressing a dispute over the University of California’s harassment policy. The core issue revolves around the portion of the policy that bars the “intentional or repeated use of a name or pronoun inconsistent with [an] individual’s gender identity.” For clarity within this ruling, the court uses the term “biological pronouns” to denote pronouns aligned with a person’s sex assigned at birth, and “preferred pronouns” to refer to pronouns aligned with a person’s gender identity.

The Plaintiffs challenge a segment of UC’s harassment policy. Their critique centers on a provision that forbids the intentional or repeated use of a name or pronoun that does not align with an individual’s gender identity. The court notes that the parties’ briefing uses the phrase “biological pronouns” to describe pronouns matching birth sex, and “preferred pronouns” to describe pronouns matching gender identity.

Although the matter touches on sensitive issues, the central dispute is a straightforward question about how UC’s policy should be read: DE asserts that the policy forbids the commonplace or isolated use of birth names and biological pronouns; UC contends it would not punish such conduct unless paired with something more. The court agrees with DE’s interpretation, finding that it faithfully tracks UC’s own descriptions of the policy.

With that interpretation in mind, two recent decisions suggest that UC’s policy goes too far in restricting protected 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.” Second, in Defending Educ. v. Olentangy (6th Cir. 2025), the Sixth Circuit sitting en banc enjoined a school district — which has more room to regulate speech than a university — from enforcing a policy against DE’s members that was similar in substance…

UC’s “Sexual Violence and Harassment Policy” spans more than forty pages and covers a range of prohibited behaviors, including sexual battery and stalking. The case at hand concerns the hostile-environment clause, which bans “unwelcome sexual or other sex-based conduct [that] is sufficiently severe, persistent or pervasive to unreasonably deny, limit, or interfere with a person’s participation in or benefit from UC’s education, employment, or other programs, and creates an environment that a reasonable person would find intimidating or offensive.” The policy also defines “sex-based conduct” as acts of verbal, nonverbal, or physical aggression, intimidation, or hostility rooted in gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation.

The policy included a “Frequently Asked Questions” section, portions of which read as follows:

What are some examples of harassment based on gender identity covered by this Policy?

Prohibited conduct under this Policy includes the intentional or repeated use of a name or pronoun inconsistent with an individual’s gender identity (i.e., misgendering). For instance, when a transgender man is deliberately and repeatedly referred to by his former name (a birth name that he no longer uses) or when a professor repeatedly calls him by “Miss” or “Ms.” in a mocking manner.

At the hearing, UC informed the court that it had revised FAQ 14 to read as follows:

What are some examples of harassment based on gender identity that may be covered by this Policy?

Prohibited conduct may include the intentional and repeated use of a name or pronoun that does not align with the individual’s gender identity (i.e., misgendering) when such conduct is unwelcome, would be perceived as intimidating or harassing by a reasonable person, and otherwise meets the Policy’s definition of hostile-environment harassment. For example, when a transgender man is deliberately and repeatedly referred to by his dead name (the birth name he no longer uses) or repeatedly addressed as “Miss” or “Ms.” by a professor in a deliberately mocking manner.

Students or faculty who breach the Policy face discipline up to and including dismissal. Beyond the Policy itself, UC students must complete Sexual Violence and Harassment, Anti-Discrimination, Prevention and Education (SHAPE) training. For a period of time, the SHAPE program included a scenario illustrating conduct that can create a hostile environment:

“My name is Mona, and I am transgender. My classmate Jane keeps calling me James, the name I had before I transitioned. Jane refers to me as a man and objects when I use the restroom. I’ve asked her to stop, but she won’t. I feel disrespected and want this to end.”

UC later stated that this example would no longer appear in SHAPE training.

Defending Education is an advocacy group with members scattered across UC. Four DE members — identified as Students A, B, C and D — hold that “people are either male or female” and that gender identity is not a distinct category separate from biological sex. If these Students were to refer to a biological male as “she” rather than “he,” they would be communicating a belief with which they disagree. They aim to use pronouns and given names aligned with a classmate’s biological sex consistently, both inside and outside the classroom and in their peers’ presence, even when the use would violate the Policy. They currently refrain from doing so for fear of punishment under the Policy….

DE is likely to succeed on the merits of its First Amendment claim

The court begins by deciding to assess the Policy using the original version of FAQ 14, notwithstanding UC’s later amendment. UC has not shown that it is “absolutely clear” that the challenged form of FAQ 14 “could not reasonably be expected to recur,” so DE’s challenge to the original FAQ 14 is not moot. Moreover, the updated FAQ 14 still bars the intentional and repeated use of biological pronouns, now framed under an objective harassment standard. The court notes that the phrase “objective harassment standard” appears to refer to a test focusing on harassment that objectively deprives a student of equal access to educational resources, a standard to which universities have greater regulatory leeway.

UC’s Policy Regulates Speech

The First Amendment does not shield restrictions aimed at conduct when they incidentally burden speech. The Supreme Court’s lineage of “speech-as-conduct” cases centers on two questions: does the law punish speech because it is tied to unlawful conduct, or does it punish expressive conduct for reasons unrelated to content? When the sole conduct punished is communication itself, the regulation travels under a speech-based rationale. (Cohen v. California, 1971; Chiles v. Salazar, 2026.)

In Bates, the Ninth Circuit rejected the argument that compelling use of designated pronouns governs speech merely as an incidental result of regulating conduct. The underlying state policy demanded adoptive parents to “respect, accept, and support” a child’s sexual orientation, gender identity, and gender expression, including their preferred pronouns. After the state denied an adoption application in part because the applicant objected to using the child’s preferred pronouns, the court held that the plaintiff’s freedom to express views on sexual orientation and gender identity was seriously curtailed, and that the policy “forced” the plaintiff to utter sentiments contrary to her beliefs — a scenario not easily dismissed as an incidental burden on speech. See also Meriwether v. Hartop (6th Cir. 2021) (pronouns convey messages about gender identity). The court thus resolved the speech-incident-to-conduct question against UC.

UC also contends that the hostile-environment provision does not regulate speech due to its “reasonableness” standard. There is no blanket “harassment exception” to the First Amendment. Moreover, the original FAQ 14 barred only the “intentional or repeated” use of biological pronouns without tying it to an objective harassment standard. But a single instance of speech deemed offensive seldom qualifies as harassment under Title IX. Consequently, the original FAQ 14 failed to anchor itself sufficiently to the harassment standard that universities regulate with greater latitude.

Additionally, UC argues that the policy avoids restricting protected speech by including a savings clause stating it “will not be interpreted to prohibit expressive conduct protected by free speech and academic freedom principles.” (But a savings clause that merely reiterates existing constitutional limits cannot save an otherwise unlawful policy.)

Building on Bates, and acknowledging that UC cannot police speech by disguising it as conduct regulation, the court determines that the Policy regulates speech.

UC’s Policy Compels Speech and Is Viewpoint-Based

With the conclusion that the Policy regulates speech, the court again turns to Bates and Olentangy to determine whether the Policy compels speech and targets speech on the basis of viewpoint. The Students intend to consistently use biological names and pronouns to convey a message about gender. DE contends that UC obligates the use of preferred pronouns, which goes beyond compelling speech and constitutes a regulation directed at viewpoint. The court agrees with DE, finding support in case law.

Bates held that a rule forcing adoptive parents to “affirm a child’s sexual or gender identity” and to “use a child’s preferred pronouns” imposed a content- and viewpoint-based constraint on speech. Olentangy likewise found that a school district’s ban on language that amounts to invective against a student, including transgender students or other protected groups, signals the most serious concerns about viewpoint discrimination under the First Amendment. The court adopts those precedents and concludes that the Policy compels speech and is oriented toward viewpoint regulation.

UC attempts to differentiate its policy by citing Bates’s observation that the state’s position would be stronger if it had simply outlawed harassment or denigration of LGBTQ youths. It also points to Olentangy’s remark that schools may prohibit abusive invective directed at specific students, including transgender, religious, female, or Hispanic students, among others. UC contends that this accurately describes its policy. Yet the policy’s text undermines this distinction: the original FAQ 14 prohibited misgendering without anchoring to an objective harassment standard. The court remains unconvinced that UC’s policy differs meaningfully from the restrictions in Bates or the policy described in Olentangy.

Because DE has shown that the Policy compels speech and is oriented toward viewpoint discrimination, the burden shifts to UC to demonstrate that its actions would survive strict scrutiny. UC has not shown the policy can endure such scrutiny, so the court finds that DE is likely to prevail on the merits of its First Amendment claim….

Defendants are hereby ENJOINED, during the pendency of this suit, from enforcing the challenged policies (the Sexual Violence and Sexual Harassment Policy and FAQ #14) against DE’s members for using pronouns or birth names in a commonplace way that aligns with the other person’s birth sex but conflicts with that person’s gender identity. If any Defendant takes action contrary to this Order against any member, that member may disclose the action to the Defendant (including via counsel), and the Defendant must halt or reverse the action upon such disclosure.

This Order does not prevent Defendants from enforcing the Sexual Violence and Sexual Harassment Policy to prevent abuse of transgender students, just as the policy is applied to protect all students from abuse….

Attorney representations: John M. Begakis (Altview Law Group LLP) and John M. Connolly, Marie E. Sayer, and Paul Richard Draper (Consovoy McCarthy PLLC) represent the plaintiff.