The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The NYCHRL [New York City Human Rights Law] requires employers[, landlords, and all businesses and professionals] to use an [employee's, tenant's, customer's, or client's] preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual's sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual's identification.
Most individuals and many transgender people use female or male pronouns and titles. Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. [Footnote: Ze and hir are popular gender-free pronouns preferred by some transgender and/or gender non-conforming individuals.] …
Examples of Violations
a. 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 …
Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their preferred gender pronoun is so that no individual is singled out for such questions and by updating their systems to allow all individuals to self-identify their names and genders. They should not limit the options for identification to male and female only.
So 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.
We have to use "ze," a made-up word that carries an obvious political connotation (endorsement of the "non-binary" view of gender). We have to call people "him" and "her" even if we believe that people's genders are determined by their biological sex and not by their self-perceptions—perceptions that, by the way, can rapidly change, for those who are "gender-fluid"—and that using terms tied to self-perception is basically a lie. (I myself am not sure whether people who are anatomically male, for example, but perceive themselves as female should be viewed as men or women; perhaps one day I'll be persuaded that they should be viewed as women; my objection is to being forced to express that view.) We can't be required to even display a license plate that says "Live Free or Die" on our car, if we object to the message; that's what the court held in Wooley v. Maynard (1978). But New York is requiring 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, and that, as to "ze," were deliberately created to convey that a message.
What's more, according to the City, "refusal to use a transgender employee's preferred name, pronoun, or title may constitute unlawful gender-based harassment." The label "harassment" is important here because harassment law requires employers and businesses to prevent harassment by co-workers and patrons and not just by themselves or their own employees; this is particularly well established for harassment by co-workers, but it has also been accepted for harassment by fellow patrons. So an employer or business that learns that its employees or patrons are "refus[ing] to use a transgender employee's preferred" pronoun or title would have to threaten to fire or eject such people unless they comply with the City's demands. (The logic would also apply to landlords having to threaten to eject tenants who refuse to use co-tenants' preferred pronouns or titles, but that's less certain.)
But of course "ze" and "Ms./Mrs." are just examples. We have to use the person's "preferred … pronoun and title," whatever those preferences might be. Some people could say they prefer "glugga" just as well as saying "ze"; the whole point is that people are supposed to be free to define their own gender, and their own pronouns and titles. Seems improbable that some people would come up with new terms like that? Well, 10 or 20 years ago it would have seemed pretty improbable that today New Yorkers would be required to call some people "ze." Check out this list, which already includes "zie," "sie" (not the German version), "ey," "ve," "tey," "e," "(f)ae," "per" and "xe." Why wouldn't some creative folks decide they want to add still more?
Or what if some people insist that their title is "Milord," or "Your Holiness"? 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 and that those really are the preferred gender terms? Or even if "Your Holiness" is understood as purely religious (again, why would that be so, given that the point is that people are supposed to be free to define their own gender self-conception and the words that go with it), presumably the same logic that applies to gender-related self-chosen titles would apply to religion-related self-chosen titles. Both sex and religious discrimination are, after all, prohibited by the same laws; by the City's logic, if you call a Catholic priest "Father," you'd have to use whatever other self-chosen religious titles people insist on. Nor is the mandated "ze"-talk analogous to simple requirements that people be treated the same regardless of race or religion (requirements that may themselves be constrained by the First Amendment in some situations). The analogy would be if the government demanded that people have to be addressed using their own preferred race- or religion-linked titles—hypothetically, enforcing people's demands that "you need to use the title 'Sun Person' when you refer to me, because I'm black," or "you need to use the title 'rav' with me because I'm Jewish," or "you need to use the title 'friend' with me because I'm a Quaker," or "you need to address me as 'thee' rather than 'you' because I'm a Quaker." Such a requirement would be just as bad as the "ze" one.
And this isn't just the government as employer, requiring its employees to say things that keep government patrons happy with government services. This is the government as sovereign, threatening "civil penalties up to $125,000 for violations, and up to $250,000 for violations that are the result of willful, wanton, or malicious conduct" if people don't speak the way the government tells them to speak. Nor is this likely to stay in New York City: The New York officials are arguing that this is just what the New York gender identity discrimination ban requires, and indeed it is part of the standard ideology expressed by many transgender rights activists; the same logic would be easily applicable by jurisdictions that have gender identity discrimination bans, or will have such bans; the federal government is taking the view that existing federal bans on sex discrimination also in effect ban gender identity discrimination, and the New York analysis would equally apply to that view; and the Equal Employment Opportunity Commission has already taken the view that it is illegal under federal law to persistently call employees by pronouns that correspond to their anatomical sex but not their gender identity, though it has not yet had occasion to opine about "ze."
Feel uncomfortable about being forced to use terms that express social status views ("Milord") or religious views ("Your Holiness") that you may not endorse? Well, you should feel uncomfortable about people being forced to use "ze," which expresses a view about gender that they might not endorse. And, more broadly, I think we should all feel uncomfortable about government regulators forcing people to say things that convey and support the government's ideology about gender.
Thanks to the pseudonymous Richard E. Thompson (Federalist Society Blog) for the pointer; Prof. Josh Blackman also blogged about this issue a few months ago.