Compelled Speech and Pronouns

December 28th, 2015

Over the summer, the University of Tennessee made some news (here and here) when its Office for Diversity and Inclusion announced that students and faculty should not assume a person’s gender, but rather either inquire about what pronouns a person chooses (“preferred gender pronouns”) or alternatively, use gender-neutral pronouns.

We should not assume someone’s gender by their appearance, nor by what is listed on a roster or in student information systems. Transgender people and people who do not identity within the gender binary may use a different name than their legal name and pronouns of their gender identity, rather than the pronouns of the sex they were assigned at birth.

In the first weeks of classes, instead of calling roll, ask everyone to provide their name and pronouns. This ensures you are not singling out transgender or non-binary students. The name a student uses may not be the one on the official roster, and the roster name may not be the same gender as the one the student now uses. …

A few of the most common singular gender-neutral pronouns are they, them, their (used as singular), ze, hir, hirs, and xe, xem, xyr.

After some controversy, the University made clear that this was mere guidance, and not mandatory.

University spokeswoman Karen Ann Simsen said there is no mandate or official policy to use the language.

“The information provided in the newsletter was offered as a resource for our campus community on inclusive practices,” Simsen said.

The announcement page from the Office for Diversity and Inclusion is no longer available, but it can be found on the Internet Archive.

So long as this was merely guidance, and not something students or faculty could be disciplined over, there are no constitutional problems. However, New York City has taken this policy in a new direction. In policy guidance from the NYC Commission on Human Rights, the De Blasio Administration has determined that “refusal to use a transgender employee’s preferred name, pronoun, or title may constitute unlawful gender-based harassment.”

Here is the full discussion on names and pronouns:

1. Failing To Use an Individual’s Preferred Name or Pronoun

The NYCHRL requires employers and covered entities to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.

Most individuals and many transgender people use female or male pronouns and titles. Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir.10 Many transgender and gender non-conforming people choose to use a different name than the one they were given at birth.

All people, including employees, tenants, customers, and participants in programs, have the right to use their preferred name regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state, or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government). Asking someone their preferred gender pronoun and preferred name is not a violation of the NYCHRL.

Examples of Violations

  • Intentional or repeated refusal to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses.
  • Refusal to use an individual’s preferred name, pronoun, or title because they do not conform to gender stereotypes. For example, calling a woman “Mr.” because her appearance is aligned with traditional gender-based stereotypes of masculinity.
  • Conditioning an individual’s use of their preferred name on obtaining a court- ordered name change or providing identification in that name. For example, a covered entity may not refuse to call a transgender woman her preferred name, Jane, because her identification says that her first name is John.11
  • Requiring an individual to provide information about their medical history or proof of having undergone particular medical procedures in order to use their preferred name, pronoun, or title.
  • Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their preferred gender pronoun is so that no individual is singled out for such questions and by updating their systems to allow all individuals to self-identify their names and genders. They should not limit the options for identification to male and female only.

Under the guidance, even a single, “intentional,” usage of the wrong pronoun could amount to a violation of the law. Most significantly, the New York policy is binding on private entities, not just city employees (the government as an employer has much more authority to regulate speech than the government as a sovereign).

Recently, the EEOC reached a similar conclusion–that failing to use a person’s preferred pronouns could violate federal anti-discrimination laws.

The Commission has held that supervisors and coworkers should use the name and gender pronoun that corresponds to the gender identity with which the employee identifies in employee records and in communications with and about the employee. See Jameson v. U.S. Postal Serv., EEOC Appeal No. 0120130992 (May 21, 2013). Persistent failure to use the employee’s correct name and pronoun may constitute unlawful, sex-based harassment if such conduct is either severe or pervasive enough to create a hostile work environment when “judged from the perspective of a reasonable person in the employee’s position. See Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81 (1998); see also Jameson, EEOC Appeal No. 0120130992; OPM Transgender Guidance (“Continued intentional misuse of the employee’s new name and pronouns, and reference to the employee’s former gender by managers, supervisors, or coworkers may undermine the employee’s therapeutic treatment, and is contrary to the goal of treating transitioning employees with dignity and respect. Such misuse may also breach the employee’s privacy, and may create a risk of harm to the employee.”). In this case, Complainant had clearly communicated to management and employees that her gender identity is female and her personnel records reflected the same. Yet S3 continued to frequently and repeatedly refer to Complainant by a male name and male pronouns. While inadvertent and isolated slips of the tongue likely would not constitute harassment, under the facts of this case, S3’s actions and demeanor made clear that S3’s use of a male name and male pronouns in referring to Complainant was not accidental, but instead was intended to humiliate and ridicule Complainant. As such, S3’s repeated and intentional conduct was offensive and demeaning to Complainant and would have been so to a reasonable person in Complainant’s position.

Lusardi, EEOC DOC 0120133395, 2015 WL 1607756, at *11 (Apr. 1, 2015)

The EEOC position is more moderate than the NYC ordinance, because it requires a “persistent failure ” to use a person’s preferred pronouns. A single “intentional” violation presumably would not be enough.

In any event, neither the EEOC nor the NYC Commission on Human Rights considered how this issue interacts with the compelled speech doctrine of the First Amendment. Justice Souter summarized the doctrine in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston:

“Since all speech inherently involves choices of what to say and what to leave unsaid,” Pacific Gas & Electric Co. v. Public Utilities Comm’n of Cal., 475 U. S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide “what not to say,” id., at 16. Although the State may at times “prescribe what shall be orthodox in commercial advertising” by requiring the dissemination of “purely factual and uncontroversial information,” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); see Pittsburgh Press Co. v.Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U. S., at 642. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 341-342 (1995);Riley v. National Federation of Blind of N. C., Inc., 574*574 487 U. S. 781, 797-798 (1988), subject, perhaps, to the permissive law of defamation, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323, 347-349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988). Nor is the rule’s benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U. S. 444 (1969);Terminiello v. Chicago, 337 U. S. 1 (1949).

Consider a few hypotheticals. First, assume a state determines that denying that humans are contributing to climate change is extremely dangerous to the environment, and to the residents of the state. Indeed, witnesses testify before the legislature that they feel “unsafe,” and threatened when climate-change-deniers spout off ignorance, and it harms an “inclusive” society. The state determines that climate-change-denialism is a scourge that must be eradicated because of how it makes other people feel, and must be treated no differently than people who use racial epithets or derogatory language. Therefore, the state passes a law that prohibits people from openly advocating that climate change is caused by man. They can think whatever they want, but they can’t vocalize it. (This isn’t too far from reality). Would anyone for a minute think that such a law could pass constitutional muster? Of course not. Forcing someone who wants to speak about climate change to endorse a theory they reject,or stay silent would be compelled speech. It is not enough to tell them to talk about another topic, if they wish to avoid feeling compelled.

For a second hypothetical, substitute “there is no man-made climate change” with “the Sun revolves around the Earth.” The state passes a law prohibiting people from talking about the geocentric model. Let’s say a person thinks Copernicus was wrong, and Ptolemy had it right, and goes around preaching that message. Could the state punish someone who publicly rejects the heliocentric model? Of course not. No matter how stupid a person’s idea is–no matter how inconsistent with science it is–a person can express his opinions, regardless of how wrong they are, or how it make others feel. If they want to talk about astronomy, they should not be faced with the choice of heliocentrism or silence.

Back to the topic at hand. New York City’s policy defines gender identity as non-binary:

one’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth. One’s gender identity may be male, female, neither or both, e.g., non-binary. Everyone has a gender identity. Gender identity is distinct from sexual orientation.

Requiring covered entities to use gender-neutral pronouns, or to use a person’s preferred gender pronouns, is consistent with a non-binary view of gender.

But what about people who reject the notion that gender is non-binary; or to avoid double negatives, view gender as binary? That is, gender is defined by what genitalia and chromosomes a person has at birth. Perhaps to the staff at the NYC Commission on Human Rights, or the Tennessee Office for Diversity and Inclusion, such an idea is absolutely outlandish and contrary to every scientific consensus–on par with a geocentric model of the universe. But that is legally irrelevant. The question of whether speech is entitled to First Amendment protection in no way depends on the correctness or offensiveness of the idea. Even if the entire scientific community concurs that gender is not binary, but exists along a spectrum, people who espouse views contrariwise are still protected by the First Amendment.

Consider another hypothetical. Sam rejects the scholarly consensus and firmly believes that a person born with male genitalia is a man, and nothing can be done to change that. To demonstrate his philosophy, Sam uses male pronouns to refer to a transgender individual, Pat, who prefers female pronouns. Sam does not do this out of hate or animus, or as a means to antagonize Pat, but as a reflection of Sam’s view of gender being binary. However, whenever Sam uses male pronouns, it hurts and marginalizes Pat. Pat brings suit under the NYC Human Rights Law. Sam counters that he does not believe Pat can ever be a woman, no matter what the court tells him, and refuses to use language consistent with what he perceives as a false-reality. Unlike talking about astronomy, Sam says it is impossible to converse in the English language without using pronouns, and he refuses to change his manner-of-speaking. The court finds that Sam violated the law, assesses significant monetary fines ($125,000 for a single violation), and issues an order that Sam is required to only use female pronouns concerning Pat.

In one respect, the court is not only ordering him to stop using language (pronouns) that offends Pat, but also to affirmatively use language (pronouns) that he believes to be untrue. It forces Sam to recognize Pat as a female, even though he firmly believes that is not the case. Again, the outlandishness or offensiveness of an idea, or whether it goes against scientific consensus, is legally irrelevant. This strikes me as potentially more problematic than a recent Massachusetts court decision that forced a landlord to take classes to learn about the Islamic faith, or an order that a baker that refuse to make cakes for same-sex weddings must undergo sensitivity training. (The former is currently being considered by the Massachusetts Supreme Judicial Court). Not only is Sam being forced to change his views about gender, but he is forced to publicly acknowledge them.

One last hypothetical. The state passes a law that imposes a fine if you refuse to call the spouse of a same-sex couple a “husband” a “wife.” Under the state’s law, same-sex couples can opt to be recognized as unions of husband-and-husband or wife-and-wife (or as Spouse #1 and Spouse #2). Sam does not deem same-sex marriage as “legitimate,” regardless of what the Supreme Court determined, and does not consider partners in such a legal union as husbands of wives. He seeks to continue what Justice Kennedy referred to in Obergefell as an “open and searching debate.” As a result, Sam refuses to refer to Pat and Val as wives. The couple brings suit, and the court fines Sam for a violation of the ordinance, and requires him to refer to both partners in the union as “wife” and “wife.” Would this order be lawful? Could the state force Sam to refer to Pat and Val as wives, even if he does not think they are?

In Wooley v. Maynard, the Court found that a person could not be compelled to display the slogan “Live Free or Die” on a license plate: “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.” As the Court held in Riley v. National Federation of the Blind, “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Such a regulation is subject to strict scrutiny. It also irrelevant that as a matter of law and fact the two are “wife and wife.” As the Court explained in Riley, the prohibition on compelled speech applies equally with respect to  “compelled statements of opinion” and “compelled statements of ‘fact‘: either form of compulsion burdens protected speech.”

I  am reminded of Justice Jackson’s famous declaration: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

My thoughts here are tentative and I welcome any comments. This isn’t an issue I have studied extremely closely, and I hadn’t seen much (other than this one essay on the Campbell Law Observer) written about compelled speech and gender pronouns. I stress that this First Amendment Speech doctrine would not extend to providing equal access to accommodations (such as bathrooms or locker-rooms), nor does it apply to taking an adverse employment action against an employee due to gender identity. My inquiry is limited to the sole question of pronouns. (Totally unrelated, but if you can, read the book The Secret Life of Pronouns, which I’ve discussed before). Compelled speech is a fairly narrow area of First Amendment doctrine, but it seems to be implicated here. And this isn’t to say that a state’s interest in eradicating discrimination against transgender individuals is so strong, that it can defeat strict scrutiny.