The government of New York City has decided that its citizens are no longer entitled to the full protections of the First Amendment. Couched in the noble language of fighting discrimination, the City has enacted measures that impose fines of up to $250,000 against employers, landlords, and public accommodations (i.e., shops, restaurants, hotels, etc.) who “fail to use a [transgender] individual’s preferred name or pronoun.” What is worse is that City government did not even bother to openly announce or debate this measure before issuing it. Rather, it used an unaccountable lawmaking tool called “guidance,” which takes effect the moment the City publishes it. Under this guidance, the City declares that the flimsy due process standards of an administrative trial are sufficient to adjudicate the free speech rights of its citizens.
The guidance’s stated purpose is to “protect transgender and other gender non-conforming individuals from discrimination.” In effect, it defines what constitutes gender-identity discrimination. The first enumerated prohibition is “failing to use an individual’s preferred name or pronoun.” But the guidance does not just punish mere non-use; it goes one incredible step further in requiring the use of “an individual’s preferred name, pronoun, and title (i.e., Ms./Mrs.).” According to the City, protection from purported discrimination of this kind is “very often a matter of life and death.”
Yet, by threatening its citizens with punitive fines for the failure to use “preferred pronouns” – including “ze” and “hir,” words unrecognizable to the vast majority of English speakers – the City is not merely compelling the use of words, it is enforcing the affirmation of a worldview. This is precisely the type of ill that the Supreme Court has sought to cure when striking down laws aimed at compelling speech.
Indeed, the seminal case of West Virginia Board of Education v. Barnette reasoned that the government, by making students pledge allegiance to the flag, was compelling them to declare a belief. The Court broadly held that such compulsions “invaded the sphere of intellect and spirit which it is the purpose of the First Amendment of our Constitution to reserve from all official control.”
The City’s guidance, in mandating the use of preferred pronouns and titles, similarly compels the declaration of a belief: namely, that the sociological concepts of gender identity and gender expression represent an immutable truth, and that the biological concept of sex is irrelevant. Even if that is objectively true, it cannot be the place of City government to compel the verbal affirmation of any such viewpoint.
Moreover, Barnette noted that the students’ refusal to participate in the affirmation did not interfere with or deny the rights of others to participate. Here too, failing to use someone’s preferred pronoun does not interfere with the right of others to use that individual’s preferred pronoun. It does not even interfere with transgender individuals’ right to define and express their identity in any way they please. Can it really be that a failure to verbally affirm another’s self-expression violates his rights? Surely not. After all, the right to self-expression is by its very terms contained within the self.
By suggesting that the right to define and express one’s identity is something contained in society at large, the City arms individuals with the bizarre and solipsistic power to compel validation from others. Imagine a similar rule mandating that individuals preface the name “Mohammed” with the title “The Holy Prophet” when speaking to a Muslim. Or a rule mandating that individuals preface the name “Jesus” with the title “Our Lord and Savior” when speaking to a Christian. A speaker who declined to use these titles might be indicating that he does not believe in these figures as a prophet or a savior. But is nonbelief by the speaker therefore discriminatory conduct? Of course it is not. And can such a failure to affirm even deeply held truths be punishable by the government? No. This wholly contravenes the freedom of speech.
Defenders of the guidance might argue that failing to use preferred pronouns does amount to discrimination. The argument would follow that just because the discrimination takes the form of speech does not mean that it should be protected as speech. Indeed, there is support for this contention. Giboney v. Empire Storage & Ice Co. pointed out that “it has never been an abridgement of freedom of speech . . . to make a course of conduct illegal merely because the conduct was . . . carried out by means of language…” More pointedly, Rumsfeld v. FAIR held that “Congress . . . can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than the conduct.”
However, the nonuse of an individual’s preferred pronoun, in and of itself, is not discriminatory conduct. To be sure, excluding a class of persons from employment, lodging, or accommodations is certainly discriminatory conduct; as is harassing a class of persons on the basis of that class. And the guidance does in fact take aim at all those recognized forms of discrimination. But, failing to verbally affirm someone else’s worldview – even if deeply and sincerely held - cannot reasonably be defined as discrimination. When the City requires the use of preferred pronouns it does so purely at the expense of speech.
Worse still, City government chose the least democratic and least accountable way to undermine free speech: through the lawmaking tool of guidance. Guidance, as a matter of course, is not like a statute. It does not come before the democratically elected City Council to be debated or voted upon. Rather, it is issued by a regulatory agency. In that way, it resembles a regulation, or “rule” in City parlance. However, unlike a regulation, guidance does not have to be released for public review and comment 60 days before it is enacted; it can simply be issued. Unfortunately for those prosecuted under guidance, its validity – and thereby its constitutionality - cannot be challenged unless the challenger has been successfully prosecuted.
Moreover, the penalties for these violations can be crushing and the standards by which the offending speech is judged are highly favorable to the government. The City can impose fines of up to $125,000 for any violation. Compensatory damages to the purported victim are unlimited. But, if the conduct was “willful, wanton, or malicious” the City can impose a fine of up to $250,000, plus damages. This, if it were not so alarming, would be laughable: a “wanton” use of pronouns? Would an example of this be the elderly referring to all cats as “she”? How can the “wanton” use of pronouns be seriously adjudicated?
Yet as unserious as such standards may sound, judgments will be made and rights will be curtailed by administrative trial. The use of administrative trial means that the prosecuting attorney is employed by the same regulatory agency that promulgated the guidance in the first place. It also means that the administrative judge’s adherence to the standard rules of evidence and civil procedure is “not necessarily required.” Citizens of New York City should be very worried that their government has dispatched with a fundamental constitutional right by fiat; but they should be out-and-out furious that their right to free speech will be adjudicated under the rubber-stamp procedures of an administrative trial.
In delivering the Court’s opinion in Barnette, Justice Jackson wrote: “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.” The petty officials of New York City have indeed prescribed their orthodoxy and decided that individuals must personally speak their message or face fines of up to $250,000. In so doing, they subordinate the fundamental right of free speech to the whim of politics.
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Richard Thomson (not the author's real name) is a JD pending admission to the bar who specializes in financial regulatory matters with a focus on investment funds.