ACLU representing NRA is consistent with its values. Its stance on transgender issues isn't.

The ACLU will represent the National Rifle Association in its suit against New York Department of Financial Services' former superintendent, Maria Vullo. It was an unusual enough pairing that the ACLU had to explain it. 

“We don’t support the NRA’s mission or its viewpoints,” the ACLU in a statement posted on X, formerly Twitter. “But we both know that government officials can’t punish organizations because they disapprove of their views.”

Many have commended the ACLU for this principled stand, but we shouldn’t praise the civil liberties champion for being free-speech maximalists just yet. The organization’s recent record on First Amendment rights is less than stellar, especially when it comes to the issue of transgender people in prison.

In Chandler v. California, a lawsuit filed by four incarcerated women, the plaintiffs argued that under the Transgender Respect, Agency, and Dignity Act – the law allowing any prisoner to be housed in a facility that matches their gender identity, not their biological sex – having to call transgender women "women" or use she/her pronouns is “compelled" political speech.

Precedent is on the plaintiffs’ side. The 6th Circuit Court of Appeals held that requiring Shawnee State University professor Nicholas Meriwether to call a student by her preferred pronouns violated his First Amendment rights. Shawnee State and the professor have settled.

The ACLU didn’t take a position in the professor's case, but it has in the Chandler case. The ACLU of Northern California and the ACLU of Southern California applied to intervene in the suit, essentially becoming parties to the case. 

The court granted their motion in August so these two ACLU chapters are allowed, even obligated, to answer the allegation that requiring preferred pronoun use is forced speech. Neither organization has filed any pleadings since being permitted to join Chandler.

Freedom of Information Act helps citizens exercise rights

The organization's recent positions on the First Amendment rights of individuals seeking information about transgender inmates have been suspect. 

The First Amendment is multifaceted: The government can’t force speech, but it also can’t prevent citizens from speaking or seeking information. Because the Freedom of Information Act makes government records accessible to the public, it helps citizens exercise their First Amendment freedoms.

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But that’s exactly what the ACLU has been doing: Assisting the government in silencing the voices of citizens. 

When the Tacoma News Tribune, radio station KIRO 97.3 FM and one private party separately requested certain information about people in Washington state custody who identify as transgender – including numbers of people transferred to women’s prisons and whether they had been disciplined – the ACLU of Washington Foundation and the Disability Rights Washington group filed suit to stop the dissemination of the records. 

The ACLU of Washington went so far as to sue the private citizen to stop her from asking for the documents. 

A federal judge granted the ACLU of Washington’s request, holding that transgender inmates would be irreparably harmed if their identities were released. But that wasn’t enough.

Stance on transgender issues inconsistent with ACLU values

During the 2022 legislative session, a bill that not only blocked access to any records on transgender inmates but also prevented any information being released about Prison Rape Elimination Act investigations passed the Washington Legislature and was signed into law by Gov. Jay Inslee. The ACLU of Washington Foundation got away with its hypocrisy by not making any specific statement in support of the law but accepting its passage as a settlement of its claims against the state of Washington. 

Considering that the ACLU’s National Prison Project works to make sure prisoners are safe, the ACLU’s support of this law puts the Washington affiliate at odds with its parent organization. 

The ACLU has faced accusations of being a front. Jennifer Thomas, activist and leader of a summer rally against the civil rights group, said: “The American Civil Liberties Union is the legal agent of the gender industry.” 

It’s a heavy charge, but when its basic principles are so clearly and nobly on display in representing the NRA, their absence becomes even more notable on other issues. 

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To be clear, each chapter of the ACLU acts autonomously, so one chapter’s stance may differ from another. Indeed, the New York Civil Liberties Union publicly disagreed with the national headquarters' decision to represent the NRA. 

But the ACLU’s decision to represent the NRA is based on a policy of consistency. And the organization’s stance on transgender issues is anything but consistent with its purported values. 

Chandra Bozelko is a 2023 Harry Frank Guggenheim Criminal Justice Reporting Fellow at the John Jay College of Criminal Justice.