On October 11, 2017, Dr. Josephson participated in Heritage Foundation’s panel presentation entitled “Gender Dysphoria in Children: Understanding the Science and Medicine.” He was joined on the panel by Dr. Michelle Cretella, President of the American College of Pediatricians, and Dr. Paul Hruz, Associate Professor of Pediatrics at the Washington University School of Medicine.
The complaint alleges that Stacie Steinbock, director of the LGBT Center at the University’s Health Science Center, Brian W. Buford, then the Executive Director of the LGBT Center, and Dr. Christine Brady, assistant professor in the Division took the lead in efforts to retaliate against Josephson for holding opposing views on gender dysphoria.
Notably, the complaint also alleges that one group involved in these efforts held opposing interests in another pending case involving Dr. Josephson: “On October 29, 2017, Dr. Josephson learned that Lambda Legal, the LGBT advocacy group representing the plaintiff in the federal case in Florida for which he served as an expert witness, intended to subpoena multiple University officials.”
Ultimately, Josephson was stripped of his position as the chief of the Division of Child and Adolescent Psychiatry and Psychology and demoted to a junior faculty member status. Later the university refused to renew his contract. I have previously written about how such contract faculty are particularly vulnerable to pressure and coercion over their academic or political views.
What is interesting is the latest skirmish in the litigation. On November 14, the university argued that Dr. Josephson must prove that he was aware the university was allegedly harassing him to use the alleged incidents as evidence. It insists that some of these meetings and measures were carried out without his knowledge and therefore could not have contributed to a “hostile environment” or made him “suffer.”
On the subjective component, while “a plaintiff does not need to be the target of, or a witness to harassment” for the incident to be legitimate evidence,“ he does need to know about it .” Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 718 (6th Cir.2012) (discussing Jackson, 191 F.3d 647) (emphasis added). “[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment.” Id. at 717 (quoting Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993)). “[A]n event should only be considered part of the totality of the circumstances if an individual employee claimed he was aware of it .” Id. (emphasis added).In short, a plaintiff must “marshal basic evidence” to show actual awareness of claimed harassment.
The argument strikes me as a tad forced in these circumstances since Josephson clearly was aware of the hostile environment shortly after the panel discussion. The complaint contains this representations of the facts:
136. During the week of November 6, 2017, Dr. Josephson had several conversations with Defendant Carter and Dr. Brady.
137. Defendant Carter and Dr. Brady expressed their concerns about Dr. Josephson’s views regarding the treatment of youth experiencing gender dysphoria based on his Heritage Foundation remarks.
138. Defendants Carter and Brady wrongly viewed Dr. Josephson as “hostile” to the treatment of patients experiencing gender dysphoria.
139. Dr. Josephson outlined a proposed program for treating youth experiencing gender dysphoria that involved cooperation between identified leaders from child psychiatry and pediatric endocrinology and detailed both how a patient would enter each system and be selected for medical and mental health treatments.
140. Dr. Josephson proposed that Dr. Brady could lead this proposed program in concert with endocrinology.
141. Defendant Carter and Dr. Brady curtly rejected Dr. Josephson’s proposal.
142. Dr. Brady declared that she did not trust Dr. Josephson to treat children experiencing gender dysphoria, claimed that he was not qualified to do so, and impugned his overall knowledge of these patients.
143. At the time, Dr. Brady had barely three years of clinical experience, compared to Dr. Josephson’s over thirty-five.
The implications of the university’s arguments could be quite stark for victims of such retaliation. So long as meetings and measures occurred in secret, a university could deny the use of such evidence at trial. In this case, the hostile environment encountered by Dr. Josephson appears to have been open and immediate despite not knowing the specifics of some of the meetings or communications made outside of his presence.
What is equally striking is the effort and expenditures of the University of Louisville in this case. The University appears entirely hostile not only to Dr. Josephson but the underlying principles of academic freedom and free speech. It seems clear that these measures would not have been taken if his views were in conformity with others on the faculty.
While I am not familiar with all of the views of Dr. Josephson, the question is why a faculty member cannot hold dissenting views on such subjects if he is not engaging in acts of discrimination or retaliation against patients, students, or colleagues.
The concern is that faculties have become echo chambers for a type of academic orthodoxy. Indeed, some have defended the trend to remove conservative faculty members from universities on the basis that conservative views are unworthy of being taught.
The editors of the legal site Above the Law have repeatedly swatted down objections to the loss of free speech and viewpoint diversity in the media and academia. In a recent column, they mocked those of us who objected to the virtual absence of conservative or libertarian faculty members at law schools.
Senior editor Joe Patrice defended “predominantly liberal faculties” based on the fact that liberal views reflect real law as opposed to junk law. (Patrice regularly calls those with opposing views “racists,” including Chief Justice John Roberts because of his objection to race-based criteria in admissions as racial discrimination). He explained that hiring a conservative academic was akin to allowing a believer in geocentrism (or that the sun orbits the earth) to teach at a university.
It is that easy. You simply declare that conservative views shared by a majority of the Supreme Court and roughly half of the population are not acceptable to be taught.
In this context, there is the added element of whether the views of a physician have lead to the denial of care for patients. However, there is no indication that such a finding was ever made against Dr. Josephson, who details efforts to reach out to the LGBT community. For example, Dr. Josephson cites a minor exchange as an example of how he was rebuffed in these efforts:
148. In the fall of 2017, Dr. Josephson became aware that many faculty members displayed rainbow stickers in their offices to communicate support for LGBT people.
149. Dr. Josephson desired to post a rainbow sticker in his office and instructed his assistant to request one from the LGBT Center, which she did on November 10, 2017. A true, accurate, and complete copy of the request from Dr. Josephson’s assistant is attached to this Complaint as Exhibit 4.
150. Three days later, Mr. Buford refused to provide Dr. Josephson the requested sticker. Ex. 4 at 1. 151. Mr. Buford refused to provide the sticker because he objected to the views Dr. Josephson expressed at the Heritage Foundation and in his expert testimony.
152. Mr. Buford falsely claimed that “Dr. Josephson has recently given speeches and taken part in other activities in which he refutes the existence of transgender identity.” Ex. 4 at 1.
153. In actuality, Dr. Josephson never refuted the existence of gender dysphoria; he simply advocated a different method for treating individuals experiencing it.
154. Mr. Buford insisted that Dr. Josephson’s expression “is in direct conflict with the spirit of the ally campaign.” Ex. 4 at 1.
The alleged denial of a sticker is obviously a small matter, but it is offered by Dr. Josephson as part of a more general effort to show that he was unable to demonstrate his support by those who insisted that he did not support the whole community.
Dr. Josephson is advancing five claims:
FIRST CAUSE OF ACTION Violation of Plaintiff’s First Amendment Right to Freedom of Speech Retaliation (42 U.S.C. § 1983)
SECOND CAUSE OF ACTION Violation of Plaintiff’s First Amendment Right to Freedom of Speech Content & Viewpoint Discrimination (42 U.S.C. § 1983)
THIRD CAUSE OF ACTION Violation of Plaintiffs’ Right to be Free from Unconstitutional Conditions (42 U.S.C. § 1983)
FOURTH CAUSE OF ACTION Violation of Plaintiff’s Fourteenth Amendment Right to Due Process of Law (42 U.S.C. § 1983)
FIFTH CAUSE OF ACTION Violation of Plaintiff’s Fourteenth Amendment Right to Equal Protection of the Law (42 U.S.C. § 1983)
This case could have significant impact for not just the University of Louisville but other universities. We will continue to watch it closely.
Here is the complaint: Josephson v. Bendapudi
Here is the Defendant’s Response: Def’s Resp. to Josephson’s Chart