Opinion | Nondiscrimination doesn’t violate the First Amendment

The University of Alabama chapter of Young Americans for Freedom claim the First Amendment means they can’t be required to pledge not to discriminate against fellow students. Against all odds and in spite of all reason, it seems like my alma mater may actually agree with them.

According to reporting by The Crimson White’s news desk and UA YAF president Trenton Buffenbarger’s public statements, this past week the UA administration explicitly gave the right-wing club the go-ahead to remove “gender identity,” “gender expression,” and “sexual identity” from the list of characteristics that cannot be used to restrict who can be a member. This exception, Buffenbarger boasted, was issued in part because of the implicit support of Alabama Attorney General Steve Marshall.

The product of a 2016 Action Plan aiming to make UA “a supportive and welcoming campus climate free from racial hostility or exclusion,” the non-discrimination clause has been a mandatory part of clubs’ constitutions at the University of Alabama for almost a decade now, always including specific mentions of gender and sexual identity.

And despite Buffenbarger’s initial characterizations of those protections as a recent imposition, anyone can go back and look at past UA YAF constitutions, or the constitutions of the clubs I was a member of, and see basically the exact same clause.

Bryce Schottelkotte, the president of UA’s Queer Student Association, told me on Wednesday that the decision to let organizations strip gender and sexual identity from the non-discrimination statement sends “the message that the administration will cave in to demands when faced with any pushback.” In her opinion at least, it means “the University is not willing to truly stand with its marginalized community when the going gets tough.”

“I am saddened to learn that a University I love and defend is unwilling to defend me back,” Schottelkotte lamented. One glance at the Instagram comments on The Crimson White’s reporting quickly confirms Schottelkotte isn’t alone. One alum posted that she is “ashamed every day” to have attended UA. Another said he found the decision “absolutely despicable.”

Also active in the comments, Buffenbarger crowed that his refusal to adopt the original nondiscrimination statement was “[a] true fight for first amendment rights!” The issue, he tried to explain to a bewildered interlocutor, is “a government institution [UA] forcing a group or persons [YAF] to say something they do not believe in to be accepted and approved [Gender Ideology Yadda Yadda].”

On YAF’s national website, Buffenbarger encouraged YAF chapters at other universities to follow in his footsteps, including by getting local conservative politicians to put more pressure on university administrations. He also repeatedly insulted the millions of LGBTQ Americans, writing in one especially bilious example of hatred and ignorance that “gender identity, gender expression, sexual identity, etc., are simply nice terms to hide behind when a man decides to wear a skirt into the ladies’ room and lie about what he is or to push people with psychological issues into harmful behaviors.”

But despite Buffenbarger’s repeated claims that these categories are somehow nonsensical, the fact that existing laws protect against discrimination on the basis of gender identity, gender expression, and sexual identity is settled case law, no matter what he thinks. And 15 years ago, the Supreme Court specifically ruled that public universities can require student organizations abide by nondiscrimination statements without violating the First Amendment.

In 2004, a branch of the Christian Legal Society operating at UC Law filed a lawsuit: Christian Legal Society Chapter v. Martinez. UC Law, like UA, required all prospective student organizations agree to “allow any student to participate … regardless of [her] status or beliefs” before they could be granted official status. Just like UA YAF, the Christian Legal Society initially sought a waiver from UC Law’s requirements, crying persecution. Unlike UA YAF, they didn’t receive one.

Due to their adopted bylaws preventing anyone who engaged in “unrepentant homosexual conduct” from joining the organization, the Christian Legal Society chapter’s suit alleged that UC Law’s “all comers” policy was a violation of their First and Fourteenth Amendment rights. Six years later, the Supreme Court’s majority decision, penned by Justice Ruth Bader Ginsburg, eviscerated their case.

“The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be,” Ginsburg wrote. “But CLS enjoys no constitutional right to state subvention of its selectivity.” Justice John Paul Stevens similarly stated in his concurrence that “although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.”

As previously mentioned, Buffenbarger and the UA chapter of Young Americans for Freedom aren’t just running the Christian Legal Society’s argument that the First Amendment provides them a right to discriminate back one more time though. They’re arguing that the mere mention of gender and sexual identity in the non-discrimination statement constitutes compelled speech. They, like key figures in the second Trump administration, are trying to roll back the clock on LGBTQ acceptance fifty years.

In the last couple months, President Trump’s appointees have been doing their best to scrub all evidence of the existence of transgender Americans from government websites. The State Department’s official travel tips for “LGBTQI+ Travelers,” for instance, now contains only advice for “LGB Travelers.”

The website for the Stonewall National Monument, a key historical site for the gay liberation movement, has also been officially vandalized, currently referring only to “LGB Americans” and “LGB flags.” The censorship of the virtual fence exhibit on the site is particularly egregious.

One photo’s caption reads: “At a young age Sylvia [Rivera] began fighting for gay and [sic] rights.” Cross-referencing an archived version of the site shows the word that should follow the now unnecessary “and” is transgender. Rivera identified as a transgender woman during the final decades of her life yet the National Parks Service website now ridiculously tells all comers that she fought for “gay and rights.”

Another caption on the “updated” website identifies Zazu Nova as “a black woman.” Identified by folk history as the woman responsible for kicking off the Stonewall Uprising, Nova was more completely identified by the original website as a “black trans woman.” In a markedly Stalinist move, the current administration has literally written trans Americans out of their own history.

And, likely more important than minor changes to some federal websites, seemingly open and shut legal cases over workplace discrimination are now being scrapped by the federal Equal Employment Opportunity Commission simply because the victims are trans according to recent reporting by the New York Times. In the horrific words of prominent conservative hatemonger Michael Knowles, the increasingly apparent goal of the Trump administration is that “transgenderism must be eradicated from public life entirely.”

The non-discrimination statement, as drafted in 2016, never required student organizations to endorse “gender ideology,” whatever conservatives think that means. It just took three basic statements of fact as a given: people identify as certain genders, they express their genders in different ways, and human attraction also comes in different forms.

What YAF were really objecting to when they refused to adopt the standard non-discrimination statement is the mere existence of queer people in our nation’s public sphere plain and simple.

That is why my alma mater rolling over in this fight frightens me. For whatever reason, I’m not all that worried that trans students will want to join YAF and be turned away. I’m worried that this marks a tidal change for the worse at the university where I spent the first, formative years of my adulthood. And it’s not like the time I spent at UA was all sunshine and roses before the passage of SB129 and the administration’s recent decision.

During my mere three or so years in Tuscaloosa, I had an anti-gay slur shouted at me from a moving car at least twice that I can recall. Several friends told me about their similar experiences and The Crimson White has repeatedly recorded the use of homophobic, transphobic, and racist slurs by counter-protestors at left-wing events on UA’s campus and at UA sports events.

The University of Alabama’s unofficial anti-prejudice slogan has been “hate doesn’t roll here” at least since I was a freshman. But if I can say that hate didn’t roll at the Capstone while I was a student, it was manifestly not for lack of bigots. It was because, for at least a few years, the administration and the overwhelming majority of the student body recognized that prejudice and hatred had to be addressed.

The university I once proudly called home is now at a crossroads. It can either continue down its present path and become a living artifact of UA’s hateful past, or stop making concessions to the loudest and most bigoted voices.