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Eugene Volokh on Compelled Pronoun Use

More transgender craziness: In a recent Volokh Conspiracy post, Eugene Volokh exposes the absurdity and unconstitutionality of the New York City Human Rights Commission’s claim that city law requires employers, landlords, businesses, and professionals to refer to their employees, tenants, customers, and clients by their preferred pronouns (and titles).

Some excerpts:

So people can basically force us — on pain of massive legal liability — to say what they want us to say, whether or not we want to endorse the political message associated with that term, and whether or not we think it’s a lie.

We have to use “ze,” a made-up word that carries an obvious political connotation (endorsement of the “non-binary” view of gender). We have to call people “him” and “her” even if we believe that people’s genders are determined by their biological sex and not by their self-perceptions — perceptions that, by the way, can rapidly change, for those who are “gender-fluid” — and that using terms tied to self-perception is basically a lie. (I myself am not sure whether people who are anatomically male, for example, but perceive themselves as female should be viewed as men or women; perhaps one day I’ll be persuaded that they should be viewed as women; my objection is to being forced to express that view.) We can’t be required to even display a license plate that says “Live Free or Die” on our car, if we object to the message; that’s what the court held in Wooley v. Maynard (1978). But New York is requiring people to actually say words that convey a message of approval of the view that gender is a matter of self-perception rather than anatomy, and that, as to “ze,” were deliberately created to convey that a message.

What’s more, according to the City, “refusal to use a transgender employee’s preferred name, pronoun, or title may constitute unlawful gender-based harassment.” … So an employer or business that learns that its employees or patrons are “refus[ing] to use a transgender employee’s preferred” pronoun or title would have to threaten to fire or eject such people unless they comply with the City’s demands.

But of course “ze” and “Ms./Mrs.” are just examples. We have to use the person’s “preferred … pronoun and title,” whatever those preferences might be. Some people could say they prefer “glugga” just as well as saying “ze”; the whole point is that people are supposed to be free to define their own gender, and their own pronouns and titles.… Or what if some people insist that their title is “Milord,” or “Your Holiness”? They may look like non-gender-related titles, but who’s to say? What if someone decides that one of the 56 genders is indeed especially noble or holy and that those really are the preferred gender terms? …

And this isn’t just the government as employer, requiring its employees to say things that keep government patrons happy with government services. This is the government as sovereign, threatening “civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct” if people don’t speak the way the government tells them to speak. Nor is this likely to stay in New York City: The New York officials are arguing that this is just what the New York gender identity discrimination ban requires, and indeed it is part of the standard ideology expressed by many transgender rights activists….

Feel uncomfortable about being forced to use terms that express social status views (“Milord”) or religious views (“Your Holiness”) that you may not endorse? Well, you should feel uncomfortable about people being forced to use “ze,” which expresses a view about gender that they might not endorse. And, more broadly, I think we should all feel uncomfortable about government regulators forcing people to say things that convey and support the government’s ideology about gender.

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