Fired University of Louisville professor claiming free-speech violation argues for jury trial

Sarah Ladd
·3 min read

The Potter Stewart U.S. Courthouse in Cincinnati is home to the 6th U.S. Circuit Court of Appeals.

The 6th U.S. Circuit Court of Appeals is considering whether a case involving a former University of Louisville professor Dr. Allan M. Josephson’s comments about how to treat gender dysphoria should go to a jury trial. 

Judges heard oral arguments Tuesday morning, the latest in a roughly five-year legal battle to reinstate Josephson as chief of the UofL medical school’s Division of Child and Adolescent Psychiatry and Psychology and reimburse him for legal fees. 

It’s unclear when the court could rule. Should it side with Josephson, the case will return to district court and undergo a jury trial, Travis C. Barham, one of Josephson’s lawyers, told the Lantern. Should it rule against Josephson, Barham said, he can request a review from the full 6th Circuit.

Josephson is represented by the Alliance Defending Freedom, a conservative Christian law firm. He argues that university officials punished and then fired him in 2019 because of what he said during a panel discussion about children experiencing gender dysphoria.

Jeremy Rogers, who argued opposite Barham, has not responded to a Lantern email seeking an interview. 

During oral arguments Rogers said actions by the individual UofL officials who are being sued by Josephson were not a violation of his constitutional rights.

But Barham argued that as an employee of an institution that gets public dollars, Josephson should enjoy free speech protections. “A victory for Dr. Josephson is a victory for everybody,” Barham said. “The irony here is that the university is advancing a legal position that would nuke the free speech rights of all professors, of all persuasions, of all viewpoints.” 

But, he added: “Whether you agree with Dr. Josephson, whether you disagree with Dr. Josephson on the issue, we should all be in favor of the idea that professors should be able to express (their views) freely, without censorship and without punishment.” 

The case

The 2017 comments in question were met with criticism from Josephson’s colleagues, who saw them as anti-LGBTQ and “demanded that the University take disciplinary action against” him, court documents allege. 

Before this, Josephson was chief of the UofL medical school’s Division of Child and Adolescent Psychiatry and Psychology for more than a decade. 

The Courier Journal reported in 2019 that the professor made the comments while on a panel before The Heritage Foundation, a D.C.-based conservative think tank. Those comments included: 

  • The “notion that gender identity should trump chromosomes, hormones, internal reproductive organs, external genitalia, and secondary sex characteristics when classifying individuals is counter to medical science.”

  • “Transgender ideology neglects the child’s need for developing coping and problem-solving skills necessary to meet developmental challenges.” 

  • Parents should “use their collective wisdom in guiding their child to align with his or her biological sex.”

Court documents say that within seven weeks of the comments, “defendants demanded that he resign his position as division chief and effectively become a junior faculty member.”  

Barham was feeling hopeful after Tuesday’s arguments, which he said went “very well.”

“It is … frustrating to attorneys, but it’s even more frustrating to clients with the way that these cases sometimes unfold in a very slow motion fashion,” he said. “This case really should be in front of a jury….So I hope that the judges will make a decision quickly.”

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