New York City imposes fines up to $250,000 for refusing to call trans person ‘ze’ or ‘hir’
New York City’s human rights commission says
it will fine New York employers and landlords up to $250,000 for using the
wrong pronoun to refer to a transgender person.
The New York City Commission on Human Rights’
“Guidance on
Discrimination on the Basis of Gender Identity or Expression” interprets
existing human rights laws against discrimination based on gender to include
gender expression, defined as “actual or perceived sex and shall also include a
person’s gender identity, self-image, appearance, behavior or expression,”
regardless of someone’s biological sex.
The guidance extends protections preventing,
for example, landlords from refusing to rent to women, so that now they can’t
refuse to rent to women who say they are men, regardless of how they present.
However, the “guidance” goes further by adding
to the list of offences that of “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.”
For any of these human rights offences, the
maximum fine is $125,000, unless the offence is “the result of willful, wanton,
or malicious conduct” – in which case the maximum is $250,000.Legal experts say the guidance violates
constitutional guarantees of free speech.
Eugene Volokh, a First Amendment specialist at
the University of California Los Angeles law school, wrote in the Washington
Post Tuesday that this would make restaurant owners responsible not only for
the speech of their employees, but of their customers.
“You can be fined for not calling people ‘ze’
or ‘hir,’ if that’s the pronoun they demand that you use,” Volokh’s headline
proclaims. But this is not only absurd, he explains, but a severe restriction
on freedom. “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.”
He observes that because what pronoun a person
chooses to express his or her gender is entirely subjective, they could pick
terms such as “Your Holiness” or “Milord,” which are currently honorifics
appropriate to Anglican bishops and Catholic Popes, but which neither could
compel anyone to use.
A transgender person, on the other hand, could
not only claim them as his or her own, Volokh argues, but could take someone
who refused to use these terms to the Human Rights Commission. “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?”
Another freedom of religion specialist, Josh
Blackman, a professor at the South Texas College of Law, considers NYC’s
guidance to be an example of “compelled speech,” and a violation of the First
Amendment’s guarantees of free religion and speech. Some people believe that
gender is not fluid but “is defined by what genitalia and chromosomes a person
has at birth. Perhaps to the staff at the NYC Commission on Human Rights … 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.”
