In a victory for free speech in higher education, the US Court of Appeals for the Sixth Circuit has ruled in favour of a distinguished child psychiatrist whom administrators at the University of Louisville demoted, harassed and then terminated for expressing concern about clinicians treating gender dysphoria with puberty blockers and hormones.
Dr Allan Josephson was hired by the university in 2003 to be the chief of its then-struggling Division of Child and Adolescent Psychiatry. Since then, he has turned the division around, building a program that now has a national reputation.
His shocking cancellation at the hands of colleagues began in 2017 after he participated in a panel discussion hosted by the widely respected conservative think tank, The Heritage Foundation, on treatment approaches for children and young adolescents experiencing gender dysphoria.
During the event, at which he spoke in his personal capacity, Dr Josephson explained that gender dysphoria is “a socio-cultural, psychological phenomenon” and “cannot be fully addressed with drugs and surgery”.
He was, he said, particularly troubled by the recent emergence of an ‘affirmative’ approach to gender dysphoria, in which clinicians are urged to unquestioningly accept a child’s self-asserted gender identity before placing them on a medical pathway involving puberty blocking medication and cross-sex hormones.
Anticipating some of the findings from the UK Cass Review (2024), he pointed out that although the evidence base to support ‘affirmation’ was weak, there was growing evidence to suggest puberty blockers can cause harms, such as long-term bone density issues and infertility.
In that context, and given “the tendency for gender dysphoria to subside by late adolescence”, he felt that an ‘affirmative’ approach “did not serve [children’s] long-term health interests”.
He went on to advocate a ‘watchful waiting’ approach, in which clinicians adopt “a more conservative, comprehensive, developmentally-based treatment” strategy, closely monitoring a child’s development without initiating any medical or social transition under they are older and their gender identity is more stable.
So far, so scholarly, you might think. And yet, after learning of his remarks, several university faculty and staff members – including members of the institution’s LGBT Centre – objected to his views. Their indignation grew even further when they heard that he had expressed similar opinions as an expert witness in various previous state and federal lawsuits involving public school children seeking to use the showers, restrooms and locker rooms of those different from their biological sex.
Court documents reveal one colleague complaining to another that Dr Josephson was “literally going against the scientific and ethical position of the profession … and getting paid to do it,” and receiving the response: “Definately [sic] agree.” However, in subsequent court depositions, both interlocutors would declaim any gender dysphoria expertise, and were unable to identify any ethical provision their colleague had violated.
Perhaps that’s why, rather than debating their differing views, they demanded the university take disciplinary action against Dr Josephson.
Remarkably, senior administrators quickly acceded to this demand, demoting Dr Josephson to the role of junior faculty just seven weeks after The Heritage Foundation panel event.
For good measure, administrators also reduced his salary, retirement benefits, and academic travel funds.
Shortly after the demotion, the Chief of Staff to the Dean of School reassured one irate employee: “We’ve taken care of that,” in reference to Dr Josephson’s presentation.
With apparently zero self-awareness, the then Chair of the Department, Charles Woods, rebuked Dr Josephson for taking part in the event, suggesting that “those on the religious right (who see themselves fighting a culture war and who do not generally exhibit compassion for those with whom they disagree)” could “promote [his contribution] in ways he might not anticipate”.
Over the following months, colleagues continued to belittle and berate him, inflicting irreparable damage to his professional career and reputation.
He was stopped from treating LGBTQ patients. He was illegally mandated to use transgender terminology (i.e., terms inconsistent with sex). He was prevented from discussing gender dysphoria with students. His teaching duties were taken away. He was temporarily banned from faculty meetings.
In an op-ed for The Daily Signal, Josephson recounts how he was “ostracised” and “subjected to other forms of hostility”, as faculty members demanded he apologise for his views on transgender issues, though without specifying to whom.
“Others remained silent, knowing which way the cultural winds were blowing,” he says. “I was stunned to realize I was actually being punished for doing what I was paid to do; namely, think and speak.”
Dr Josephson’s work environment became increasingly hostile until the university informed him of its highly unusual decision not to renew his contract when it expired on June 30, 2019, ending a nearly 40-year academic career.
Following his termination, he sued the school, and in March 2023 a federal district court ruled that a jury should hear his claims that university officials retaliated against him for his constitutionally protected speech.
The officials in question then appealed this decision, arguing that they were entitled to qualified immunity, which would have protected them from having to stand trial.
It was not clearly established, they claimed, that each defendant’s conduct, in isolation, showed retaliation against the professor because of his protected First Amendment speech. They further argued that it was “unclear” whether the First Amendment protected Dr Josephson’s off-campus, off-the-clock speech on gender dysphoria.
In response, Dr Josephson’s counsel pointed out that this was effectively to ask the Court to ignore “decades of established precedent—from this Court and the Supreme Court—that protects professors’ right to express their views on public issues off campus, prohibits public universities from retaliating against professors who exercise this right, and allows wrongly terminated professors to seek reinstatement”.
Earlier this month, the Sixth Circuit Court of Appeals rejected the defendants’ argument.
“Viewing the evidence in the light most favourable to Josephson, as we must,” the Court’s opinion states, “Josephson has shown that he engaged in protected speech when he spoke as part of the Heritage Foundation panel.”
The ruling continues: “Defendants knew or should have known that they were violating Dr. Josephson’s constitutional rights by subjecting him to adverse employment actions, including but not limited to demoting him from his position as Division Chief and then not renewing his contract (i.e., effectively firing him), because of the views he expressed on matters of public concern as an expert witness and at The Heritage Foundation.”
In other words the Court concurs with the claim made in Dr Josephson’s original legal complaint, that: “They took all these retaliatory actions with an eye to ensuring that neither he nor anyone else dares to express viewpoints they find objectionable on medical and psychiatric issues.”
The case of Josephson v. Ganzel et al will now be sent back to the district court for jury trial.
Responding to the ruling, Travis Barham, senior counsel with Alliance Defending Freedom (ADF), who represented Dr Josephson, said: “Public universities have no business punishing professors simply because they hold different views than a few colleagues or administrators. The Court’s decision affirms that basic truth.”
He added: “Dr. Josephson had a long and distinguished career at the University of Louisville, leading and rebuilding its child psychiatry program. On his own time, he spoke about treatments for children struggling with their sex, and the University punished him for expressing his opinion. That’s exactly what the First Amendment prohibits, and when public universities disregard our nation’s highest law, they must be held accountable.”
