UND's Flawed Gender Proposal

By Christopher Dodson
Executive Director
North Dakota Catholic Conference
January 2022

Last fall the University of North Dakota quietly advanced a “gender inclusion” policy that could infringe upon constitutional rights and create troubling housing situations for students.

The university may have followed the usual process for adopting new policies, but even campus members did not hear about the proposal until it was revealed by a statewide columnist. By that time, only a few days were left in the official comment period.

The proposed policy adopts a system of “gender inclusion” that requires faculty, staff, students, student clubs, and even campus visitors to use an individual’s preferred pronoun and accept the individual’s “expressed gender.” It also requires that all communications on campus refrain from language that assumes a gender binary. Failure to do so would violate campus policy and subject the violator to penalties.

Before discussing more details about the proposed policy, let us review Catholic teaching and basic truths about the human person. Human beings are created male and female from conception. Our sex is an objective truth that cannot be changed. To deny it denies the dignity bestowed on us by God. The idea that gender can be separated from biological sex is false. The concept that gender is subjective or fluid is a man-made ideology contrary to objective, biological reality and disrespectful of nature and human dignity.

For some people, their perceived gender does not conform to their biological sex. They should be treated with respect and the university should foster a respectful learning environment. UND’s proposal, however, goes beyond setting mere rules for administration respecting a person’s preferred name and pronoun. It reaches into the free speech and religious rights of students, faculty, staff, and visitors. According the the state board of higher education, UND is the only one of the state’s eleven campuses pursuing such a policy.

Students and faculty do not lose their First Amendment rights when they enter the doors of a state university. The proposed policy by UND amounts to unconstitutionally compelling speech and a particular viewpoint. In fact, one court has already found a similar policy unconstitutional as applied to faculty. The court stated: “[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth.” This was impermissible compelled speech.

On October 25, 2021, the North Dakota Catholic Conference sent a letter to university officials discussing some of the problems with the proposed policy and how it violated constitutional rights, North Dakota law, and university policy. It never received a reply.

Concerned about the proposed policy and the possibility that Catholic parents and graduating high school students considering UND might not know about the proposal, Bishop David Kagan of Bismarck and Bishop John Folda of Fargo directed the North Dakota Catholic Conference to prepare a letter on their behalf that Catholic high schools in the state could share with parents and interested persons. The letter was sent on January 10, 2022.

The issue spread across social media and news outlets and UND began receiving emails and calls in opposition to the proposal. UND president Andrew Armacost subsequently held a virtual press event to answer questions about the proposed policy. Armacost emphasized that the proposal was only a draft and that the housing issue would be addressed.

The North Dakota Catholic Conference issued this response:

We appreciate that University of North Dakota President Andrew Armacost took time to address some of the concerns the North Dakota Catholic Conference and many others have expressed about the university’s proposed gender inclusion policy.

We share the university’s desire to create a learning environment free of harassment. The published proposal, however, was over broad.

We appreciate the clarification on the housing issue. Future iterations of the proposal, if any, should clearly address this issue. Students should not, however, have to rely on receiving an exemption to the on-campus housing policy or requesting a roommate change to ensure that the student is placed with someone of the same sex.

We appreciate that President Armacost found our free speech and religious freedom concerns useful. We look forward to the university concretely addressing each of the concerns if the proposal moves forward.

Finally, we wish to take this opportunity to clear up a misconception about the letter released earlier this week. The letter was not sent to the parents of UND students. It was sent to parents of students in Catholic high schools and, in some cases, other Catholic parishioners with high school students. Its “urgency,” as President Armacost put it, was related to the fact that Catholic high school students and parents will soon be making decisions about college plans and the bishops felt that they should be aware of possible policy. It was not directed at the university, its students, or those students’ parents.

UPDATE January 21, 2021

Today, University of North Dakota President Andrew Armacost announced that the university will cease work and not implement the proposed “gender inclusion” policy. The North Dakota Catholic Conference has issued the following statement in response:

The North Dakota Catholic Conference welcomes the University of North Dakota’s decision cease work on the draft policy and not implement it.

We appreciate and support UND’s commitment to providing a safe and respectful environment that respects the free speech and religious rights of all students, faculty, staff, and campus visitors. No one should feel unwelcome on our state’s campuses.

Following last week’s press conference by UND officials, some questions still remained regarding housing assignments. We have had subsequent conversations with UND President Andrew Armacost during which he assured us that UND’s housing practices will not change. This clarification resolves our earlier concerns about housing.