A new law in Massachusetts, which forbids public places from having sex-segregated restrooms, could be wielded against pastors who refer to an individual using pronouns consistent with that person’s biological sex rather than the pronouns with which the individual identifies. The Massachusetts Commission Against Discrimination, tasked with enforcing the state law, released its Gender Identity Guidance last month, asserting that:
Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.
Under this interpretation of the law — redefining a church as a place of public accommodation, at least when it is holding a “secular” event — nearly every church would be subject to this law. By their very nature, events at most places of worship are open to the public, because authentic evangelization necessitates openness to all.
Thus nearly any pastor could be guilty of “harassment” and of violating the Massachusetts law if he used an “incorrect” pronoun (i.e. a pronoun matching an individual’s biological sex) to refer to a transgender individual. According to the Washington Post’s Eugene Volokh, a church could even be held accountable for critical statements made by congregation members about transgender people, because such comments supposedly would create a hostile environment.
If the commission’s guidance is indeed leveraged against churches and pastors in order to enforce compliance with the use of certain pronouns, it will be tremendously dangerous to free society and religious exercise. First, legally requiring the use of one pronoun or another is undoubtedly a form of forced speech, a clear violation of the First Amendment.
Secondly, and perhaps more troublingly, this law normalizes government involvement in defining what does and does not constitute religious exercise. In the same way that the Obama administration’s Health and Human Services Department defined a Catholic hospital as one that only serves Catholic individuals, the interpretation of this law defines “religious events” as those that are only for official members of that community. As soon as a church opens its doors to the public — a practice intrinsic to the mission of nearly all churches — the government maintains that it is no longer hosting a religious event. Even aside from the flaws in this logic, it is wrong in principle for the government to define what does and does not constitute a religious or secular event.