The Volokh Conspiracy
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I blogged last week about the New York City Commission on Human Rights legal guidance on transgender pronouns: Among other things, the commission stated that employers, landlords, businesses and professionals had to use employees', tenants', customers' and clients' preferred pronouns, including "they/them/theirs or ze/hir," or face the risk of huge civil liability. Now the Oregonian (Casey Parks) reports on a settlement in one such case in Portland. (I saw a copy of the complaint and the settlement agreement, and some of the quotes are from there.)
Leo Soell, born Brina, and a schoolteacher in the Gresham-Barlow (Oregon) School District, "do[es] not identify as male or female but rather transmasculine and genderqueer, or androgynous." Soell wants people to call Soell "they," and submitted a complaint to the school district objecting (in part) that other schoolteachers engaged in "harassment" by, among other things, "refusing to call me by my correct name and gender to me or among themselves" (emphasis added), as well as posting "messages on Facebook that denigrate transgender people."
Soell's complaint also pointed to other things: Soell argued, for instance, that Soell was forbidden from answering students' questions about Soell's gender identity and that other employees weren't allowed to use Soell's preferred pronouns even if they wanted to; that may have itself have violated the First Amendment (I note a bit more about the First Amendment and government employers below). Soell also complained about various other matters, such as problems involving gender-neutral bathrooms, additional scrutiny of Soell's work based on Soell's sexual identity, failure to properly accommodate Soell's disability (Soell was recovering from cancer and from chemotherapy). Some of those complaints may have been well-founded; I express no opinion here on them, partly because the facts aren't clear.
But the refusal to use Soell's preferred pronouns when talking about Soell was a significant part of the complaint, and a significant part of the rules that the district is required to impose as a result of the settlement agreement: The school district agreed to settle the claim for $60,000 "as compensation for actual damages, emotional distress and attorney fees," and with the district promising to "develop official guidance documents for administrators/staff that address working with transgender staff"; the documents, to be developed together with "TransActive and the District equity team," will address, among other things, "pronoun usage." "[V]iolations of the guidance will be grounds for discipline."
Such policies—especially when they are applied by the government acting as regulator of privately owned businesses (as in New York)—strike me as a major intrusion on others' freedom generally, and free speech rights in particular.
For starters, though the singular "they" is standard English in some situations (e.g., Shakespeare's "There's not a man I meet but doth salute me as if I were their well-acquainted friend"), it is highly nonstandard for referring to a particular known person. Compelling people to change the way they use the ordinary, commonplace words of everyday speech—turning plurals into singulars (or vice versa)—is a serious imposition. Some transgender people claim that using their preferred pronouns is required as a matter of "respect." But I don't think it's at all respectful to demand that others change their speaking this way, and indeed to coerce them into doing this (as the settlement agreement seems to call for, and as the New York City guidance provides).
Nor is this just a matter of asking for equal treatment. People don't generally get to choose their pronouns, come up with new pronouns for themselves, or change the grammatical features of normal words. While the custom is generally to use others' names, there is no such custom as to pronouns. If a Quaker insisted that people call him "thee" instead of "you" (Quakers generally don't insist on that, but if everyone gets to choose a pronoun, then why not?), I don't think we would—or should—feel obligated to do so. Likewise for "they," used for reasons of sexual identity as opposed to "thee" for religious identity.
Moreover, as a (sympathetic) Portland Tribune article (Caitlin Feldman) notes, Soell appears to be using "they" to convey an idea about language and how language should be:
"Some people might argue, 'Why don't you just use "he?" It's masculine,'" said Soell. "But 'they' continuously points to the fact that the language is not inclusive." …
Using "they" as a singular pronoun sets off grammar alarms in many people's brains, including Soell's, when they first begin changing pronouns.
And that simply highlights that others' use of "they" will likewise be seen as buying into that idea. Perhaps it's a good idea, and a good shift. The language would in many respects be more convenient if it had unisex pronouns and unisex titles. It may well be fairer, perhaps just to the few who don't identify as men or women, but perhaps to the many who do so identify. I'm glad that the informal second-person singular "thou" has over time disappeared from the English language, leaving just the second-person singular "you"; as a native Russian speaker, I can personally testify to the difficulty of having to keep track of whom one is on "thou" terms with and whom one is on "you" terms with, and risk embarrassment when I get it wrong either way. (I'm not as pleased that there's no separate second-person plural in English, but that is a story for another day.) Maybe "he" and "she" should vanish altogether, or at least be supplemented with a singular "they." Indeed, as you may have noticed from this post, I'm not sure whether it is accurate to call Soell "she" (nor am I sure that is inaccurate), so I have just used Soell's name repeatedly, clunky as it is.
But trying to force people to endorse a particular view on these questions by requiring them to use this highly conspicuous, nonstandard usage, I think, violates basic First Amendment principles. Drivers, the Supreme Court held in Wooley v. Maynard (1978), are entitled not to display "Live Free or Die" on their license plates—not to be "in effect require[d] … [to] use their private property as a 'mobile billboard' for the State's ideological message." They would likewise be free not to display "Language Should Be More Inclusive." And they should be free not to use words that "set off grammar alarms" that signal such an ideological message.
When it comes to the government acting as employer, dictating what employees may say at work, the First Amendment question necessarily becomes more complicated. Perhaps a government employer might be able to require employees on the job to use "they" or "ze" or "thee" or "dude" or "human" or "comrade" or whatever a co-worker prefers. (See this post for more on that.)
But Soell's complaint alleged that failure to use the terms was "harassment" and discrimination, which is forbidden in privately owned workplaces as well as governmental ones. The New York City guidance likewise applies to such privately owned workplaces. And when the government is acting as sovereign, telling us what we must or must not say on pain of coercively imposed legal liability, the First Amendment is at full force. That force, I think, should preclude government commands that we start using new words—or radical grammatical modifications of old, familiar words—that convey government-favored messages about gender identity or anything else.
Thanks to Hans Bader for the pointer.