Legal Experts: Transgender Pronoun Mandates Are Unconstitutional

Peter Hasson | Reporter

Government mandates that force people to use a transgender person’s preferred name and pronoun are unconstitutional restrictions on the First Amendment right to free speech, legal experts say.

As the transgender debate moves further and further to the front of the public consciousness, government agencies are increasingly implementing policies that require people to call transgender persons by their preferred name and pronouns, regardless of their biological sex.

In December, for example, New York City’s Commission on Human Rights passed a gender identity policy threatening fines up to $250,000 for intentionally using the wrong name or pronoun to refer to a transgender person, even if they prefer gender-neutral pronouns like “ze.”

On Monday, The Daily Caller reported on a similar policy implemented by Washington, D.C.’s Office of Human Rights (OHR). Stephanie Franklin, OHR’s director of policy and communications, told TheDC that “Any workplace environment in DC—private businesses included— in which supervisors or co-workers deliberately misuse a person’s preferred name or pronoun may be considered unlawful harassment and/or a hostile work environment according to DC law.”

Hans Bader, a senior attorney at the Competitive Enterprise Institute (CEI) and former attorney in the Department of Education’s Office of Civil Rights told TheDC that Washington, D.C.’s Office of Human Rights “is violating the First Amendment by pressuring employers and workers to use imaginary words like ‘ze’ and ‘zir,’ and to violate basic grammar by referring to a transgender person as ‘themselves.'”

“The First Amendment forbids such compelled speech, as the Supreme Court’s 1995 decision in Hurley v. Irish-American Gay Group of Boston makes clear. (It said a state’s LGBT bias law could not be used to force a parade to admit a gay-rights contingent, since that was compelled speech.)” Bader said.

Bader, a Harvard Law graduate, went on to explain that “The Supreme Court has said mild restrictions on First Amendment rights can sometimes be justified by antidiscrimination laws that promote compelling government interests, but this pressure goes beyond what the courts have allowed, since it commands not equal treatment of the transgendered, but a preference in their favor.”

“Non-trangender people have no right to force co-workers to use made-up words to refer to them, or to violate basic grammatical rules, so trangender people should not, either.”

Similarly, Matt Sharp, an attorney with religious freedom law firm Alliance Defending Freedom, told TheDC that gender pronoun mandates like those implemented by D.C. and New York City are “clearly unconstitutional.”

“What they are doing is dictating to people how they speak, what viewpoints they express, what truths they can talk about. We’re even starting to see these pop up in public schools,” Sharp said. TheDC has previously reported that public school systems have implemented policies that require children to use gender-neutral language while at school.

Sharp went on to say that “telling adults you’re going to be penalized unless you censor your speech and only refer to someone by their chosen gender pronoun, that is something that clearly infringes on freedom of speech under the First Amendment.”

“They’re not seeking tolerance, they’re seeking to force people and especially religious people to affirm and agree with their chosen lifestyle, their chosen gender,” Sharp said later. “We are going to see this used to specifically go after religious individuals.”

UCLA Law professor Eugene Volokh argued in a Washington Post article last month that gender pronoun mandates aren’t “just a matter of asking for equal treatment.

Volokh, who specializes in First Amendment law, continued: “People don’t generally get to choose their pronouns, come up with new pronouns for themselves, or change the grammatical features of normal words.”

Follow Peter Hasson on Twitter @PeterJHasson

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