New in WaPo: The government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he’

June 16th, 2016

The Washington Post’s In Theory blog invites thinkers to contribute to a symposium on various big ideas. This week, the series focuses on transgender people and the law. My contribution was based on a post I wrote in December about compelled speech and pronouns.

Here is the introduction:

The New York City Commission on Human Rights recently announced that employers, landlords and other professionals are required to use a transgender person’s preferred pronoun “regardless of the individual’s sex assigned at birth.” The Equal Employment Opportunity Commission similarly determined that failing to use a person’s preferred pronoun could violate federal anti-discrimination laws.

Though these mandates may seem like acts of civility, they in effect impose ideas about gender identity on speakers. Requiring people to voice beliefs that they do not hold, or even understand, is a flagrant and unacceptable violation of the freedom of speech.

To address what I see as expected critiques, I offer several distinctions of why this unprecedented pronoun mandate is different from other laws regulating harassment (doctrine that is in serious tension with the First Amendment):

With respect to transgender nomenclature, critics may counter that refusing to use a person’s preferred pronoun amounts to harassment and is no different from using a slur. There are at least three critical distinctions. First, derogatory slurs exist in the vernacular for a specific reason: to be derogatory. The same cannot be said for pronouns, which have existed in language since time immemorial as a benign shorthand to identify people. Imposing a mandate that millennia-old nomenclature is now harassment is a bridge too far. Furthermore, unlike laws regulating the definition of marriage, the state has never played any role in granting its imprimatur to language one way or the other. New York’s unprecedented pronoun mandate is the first instance of the government dictating speech.

Second, while a non-binary view of gender may be orthodoxy in certain segments of society, a near-majority of Americans reject it as a fact of life. A recent CBS News/New York Times poll asked about which public bathroom transgender people should be allowed to use. Forty-six percent responded that they “should have to use the public bathrooms of the gender they were born as.” Forty-one percent responded that they “should be allowed to use the public bathrooms of the gender they identify with.” Imposing an idea on 46 percent of Americans who do not hold that belief cannot be reconciled with the marketplace of ideas guarded by our First Amendment.

Third, there is a subtle but critical line between promoting tolerance and controlling thought. UCLA Law Professor Eugene Volokh explained that the New York law “requir[es] 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.” As the polling suggests, reasonable minds disagree about sex and gender identity. Requiring everyone to adopt a new vernacular ends any debate.

I close by noting the staggering implications of this mandate–it forces on people ideas about gender identity they do not hold. It is frankly Orwellian.

The notion that the state can now control language is reminiscent of “Newspeak,” the fictional language in the dystopian classic “1984.” Taking a page from Orwell, the Big Apple actually requires speakers to use the inventedgender-free pronoun “ze,” a word that does not appear in fivedifferentdictionariesIchecked. A future version of this regime could potentially outlaw gendered pronouns altogether, so as to accommodate gender-fluid individuals. Taken to its natural conclusion, this effort to promote tolerance is frighteningly intolerant. . . .

This Orwellian tactic is not the way to change hearts and minds. New York should go back to the drawing board and draft up a more inclusive way of being more inclusive.

The government cannot force a Jehova’s Witness student to salute the flag, or recite the pledge of allegiance, because the student does not hold those beliefs. Justice Robert Jackson’s timeless wisdom should not be forgotten:

“If there is any fixed star in our constitutional constellation,” wrote Justice Robert Jackson, “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.”