Fighting for the Right to Fight: Women Weigh in on Attorneys’ Free Speech Rights
Introduction
Last month, law professor and First Amendment expert Eugene Volokh filed an amicus brief on behalf of Women's Liberation Front (WoLF) and Concerned Women for America (CWA), arguing that a new legal ethics rule violates the free speech rights of attorneys. WoLF and CWA came together, just as in our recent 7th Circuit brief, in order to highlight the importance of this issue to all women, regardless of political or ideological leaning.
The brief was submitted for the case Greenberg v. Lehocky, which is challenging Pennsylvania’s version of Model Rule 8.4(g). The Third Circuit Court of Appeals is reviewing whether this rule constitutes viewpoint discrimination in violation of attorneys’ constitutional right to free speech. The brief makes vital arguments urging the Court to consider the many ways in which this rule is incompatible with the First Amendment (several of which we touched in on our introductory blog on this topic). WoLF thanks Professor Volokh and the law students who worked on the brief, which you can read here.
The brief cited a few disturbing examples of WoLF and other organizations being publicly targeted by powerful people and groups for legal work opposing “gender identity” policies. We include a few more incidents at the end of this article about two vital issues that make Rule 8.4(g) particularly threatening to women’s rights:
First, supporters of “gender identity” policies (and even some opponents) deny that there is a law and policy debate here about subjects like sex discrimination and free speech, and instead distracts from critical issues by maintaining that the controversy is something akin to a philosophical or scientific inquiry into human existence,
Second, women’s rights advocacy is itself viewed as misconduct by some Rule 8.4(g) proponents. Because sex-based rights depend on the legal recognition of sex as objective and immutable, these proponents believe feminist advocacy is incompatible with the administration of justice because it consists of publicly insisting, loudly and repeatedly, that men are men.
The Emperor Has No Clothes
“The power of language to shape our perceptions of other people is immense. Precise use of terms in regards to gender can have a significant impact on demystifying many of the mispeceptions associated with gender.”
There is no sincere controversy about the nature of sex. “Transgender women” can only be male - or in the gender parlance, “assigned male at birth.” It is undisputed that sex is recorded at birth by a doctor or midwife based on his or her observations of the baby’s anatomy. For most of us, there is no further analysis of this “event.” But those who believe in gendered souls attach further significance, believing that even if the doctor or midwife did accurately discern that the baby had a penis or a vulva, the “assigned gender” may not match the newborn’s “deeply held, internal sense of self as masculine, feminine, a blend of both, neither, something else.”
Both sides of this issue describe the same material experiences; they just do so using a different language that reflects their views on the importance of bodily sex.
Yet we are not often able to debate or argue the legal issues of that exact question. Instead, we are confronted on a daily basis with the false notion that this debate centers on the nature of human sex, rather than on the significance of human sex. This framing is intentional. It is a (quite effective) tactic to direct the narrative by demonizing neutral discussion, and control speech to the greatest extent possible, not just in law and policy, but also in culture. It is difficult to overstate the disastrous impact on free speech discourse. Consider a policy question of whether female people should be permitted to have female-only spaces and resources, including sports:
Our side asserts that the substance of this controversy deserves discussion and debate, including in a court of law.
Their side asserts that the mere contention that there could be a controversy is hateful and may lead to death by homicide or suicide of some of the interested parties in the controversy.
This is not meant to be hyperbolic; “their side” is a tiny minority of people, and there are a tremendous number of people with a diversity of opinions on this issue. But that group - which includes much of the legal profession - is being increasingly persuaded or prodded to adopt or profess the extreme viewpoint in the second bullet.
The right to free speech, including legal advocacy, is vital to WoLF’s mission of restoring, protecting, and advancing the rights of women and girls. Many governments, schools, and institutions choose to withhold protection for women and girls on the basis of sex, especially in hate crime laws, yet these same places might consider it hate speech to assert that being female is not an identity.
The contention that being female is only a personal self-identity suggests that the subjugation, abuse, and exploitation that women have suffered (and still suffer) was not, in fact, on the basis of sex, but on the basis of an ephemeral concept inside their head.
This reason alone is sufficient to reject the notion, as WoLF does, that a factual statement could ever be considered “hate speech” (whether that speech is legally protected or not). Stating that there are objective characteristics that differentiate men from women is akin to stating that the world is round: pronouncing either one as “hate speech” is absurd.
The Right to Petition the Government
“(a) A lawyer shall not knowingly… (1) make a false statement of fact or law to a tribunal.”
The First Amendment is more than free speech or freedom of religion. It also gives us the right to petition the government for redress of grievances. This right is massively infringed upon for clients of attorneys who are subject to compelled speech. It also can be a barrier to even accessing the courtroom at all, as some of our plaintiffs learned in Chandler v. CDCR by way of the prison system’s administrative grievance process.
The language requirements imposed on prison officials by SB 132 (though further exacerbated by their handling by prison officials), create a facially unconstitutional restraint on the plaintiffs’ right to petition the government for redress of grievances as guaranteed by the First Amendment. This is especially true because under federal law, prisoners must go through the entire (lengthy) administrative grievance process before they are allowed to file most civil rights claims in court.
WoLF argues in Chandler that SB 132 facially violates the constitution, meaning that there is no way that this statute can be applied without violating the rights of incarcerated women. Because there is nothing the prison can do to remedy the grievance while still complying with the law, the prisoners are not required to exhaust a fruitless grievance process.
One of our plaintiffs, Krystal Gonzalez, filed a grievance about a male inmate who rubbed his penis on her, in which she requested single-sex housing away from men. Krystal knew that SB 132 would not allow the prison to provide her or any other woman with female-only housing without violating the law. However, Krystal was desperate to be safe, and so she filed this grievance anyway, hoping that they would recognize the danger and the harm, and would choose to take action to prevent avoidable, irreversible harm to the women in its custody.
In its response to Krystal’s grievance, the prison referred to her perpetrator as a “transgender woman with a penis.” Krystal was understandably upset by this; not only was it upsetting, but the prison cannot possibly claim to meaningfully evaluate her request for “single-sex housing” while simultaneously insisting that she already lives in single-sex housing. As icing on the cake, the state insisted in court documents that “inmates” are not subject to the speech requirements of SB 132, while simultaneously accusing Krystal of “willfully misgendering” him. (Section II (G) (1) of Plaintiff Opp. to Motion to Dismiss) Other women have similarly had language in their grievances changed and been cautioned about language use.
WoLF has previously written about this issue, specifically discussing incidents of compelled speech by judges in sex discrimination cases (litigants being forced to refer to male parties as “she”), as well as reactions in New York and elsewhere to the U.S. v. Varner decision by doubling down, actually declaring that the use of ordinary language to describe a person’s sex is akin to a racial slur. For example: You cannot say this man is “male,” but you can say he was “assigned male at birth.” You cannot call him a man, but you can say he is a “transgender woman with a penis.”
This is where we circle back to: We cannot falsely state in court or in court documents that women have penises without violating Rule 3.3’s prohibition on false statements to the tribunal. Rule 8.4(g), as interpreted by its proponents, puts those of us who do not adopt these rituals in an unfair bind.
Lawyers deserve to know precisely what conduct or speech is being regulated by quasi-government entities like state bars. Which behaviors or activities - specifically - are covered under this rule that were not already prohibited? It’s hard to get an answer to this question, leading some to wonder whether chilled speech is a feature, not a bug.
An article by the American Bar Association starts out by saying, “News headlines reveal bias, harassment, and discrimination are still alive and well in business, government, and the practice of law.” and then goes on to provide no examples of these “news headlines,” let alone objective data to support any of their statements. The Evolution of Model Rule 8.4 (g): Working to Eliminate Bias, Discrimination, and Harassment in the Practice of Law (americanbar.org)
Attempts to Suppress WoLF’s Work
A Harvard law clinical professor said if WoLF counsel were licensed in New York, he would file a Rule 8.4 complaint against them for using a deceased trans-identified litigant’s former name by reference in an amicus brief for a case opposing child medicalization of gender non-conformity.
This person is teaching his twisted views on the First Amendment to the next generation of lawyers. A prominent legal aid firm is openly saying, purely on the basis of our legal advocacy, that WoLF is “devoted to violence” against a group that is now protected under this rule… and we are supposed to believe that the people and groups who adopt this rule in the first place will defend the legal advocacy exception?
https://twitter.com/Esqueer_/status/1463278455076921354
We don’t buy it for a second. As noted in the amicus brief, a government (or in this case, a quasi-governmental entity) assuring that Rule 8.4(g) will be applied “far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.” United States v. Stevens, 559 U.S. 460, 480 (2010).
In 2021, a law school group and a legal aid organization publicly stated that WoLF advocated for “transphobic” policies and that WoLF was a “discriminatory” and “hateful” group:
While members of the public frequently accuse WoLF of “transphobia” or being “hateful,” it is extremely concerning when these types of allegations are made by professionals associated with legal organizations.
What Does This Mean for WoLF?
It means we need to keep fighting for the right to fight.
WoLF’s charitable mission is to restore, protect, and advance the rights of women and girls though legal and policy advocacy, and public education. All of WoLF’s activities fall squarely within 8.4(g)’s exemption for legal advocacy. Yet in the past few years alone, there have been numerous public denunciations or calls for deplatforming, even threats to report WoLF attorneys - sometimes explicitly under Rule 8.4 - citing only WoLF’s legal advocacy work as the reason.
Recent pressure campaigns, denunciations, and hate group statuses are not aimed at our advocacy itself - these groups typically refuse to engage with our advocacy. Rather, these groups insinuate that WoLF has committed a social crime – the crime of factually identifying male people as male, and stating that sex is an innate, immutable characteristic.
WoLF is currently awaiting rulings for a motion to dismiss and a motion to intervene from the ACLU in Chandler v. CDCR. The ACLU has successfully persuaded judges to compel faith-based pronoun usage in at least two other cases that relate to sex discrimination, and it is reasonable to believe that if they are permitted to intervene, they will similarly seek to compel WoLF in this case.
In spite of the fact that the only federal appeals court to take up this issue has ruled against compelled pronouns in litigation, and that the plain language of 8.4(g) exempts legal advocacy, and that plainly stating a person’s sex is immeasurably relevant in challenging gender identity policies that endanger women’s safety and privacy, many powerful entities and individuals in the legal profession earnestly assert that WoLF’s legal advocacy is hateful and bigoted, even violent.
Despite the various accusations leveled against WoLF by our critics, we will continue to fight for the total liberation of women and girls – this means we will also keep fighting to protect attorneys’ free speech.
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