Free Speech

Will Lawyers Be Punishable for Using the "Wrong" Pronouns to Refer to Transgender People in "Social" or "Bar Association" Activities?

LAMBDA Legal suggests the answer would be "yes," under the American Bar Association's proposed rule 8.4, which they are supporting.


In 2016, the American Bar Association proposed a new ethical rule for lawyers, 8.4(g) (plus the official comment). Many, including me, have argued that this rule, if adopted, would create an unconstitutional speech code for lawyers—and one that extends not just to speech in court or in other litigation activities, but also to "bar association, business or social activities in connection with the practice of law" (in the words of the official comment):

It is professional misconduct for a lawyer to … engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Discrimination and harassment … includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

As I've argued, the restriction is potentially very broad:

Say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar:

[1.] He has engaged in "verbal … conduct" that "manifests bias or prejudice" toward gays, Muslims or transgender people.

[2.] Some people view such statements as "harmful"; those people may well include bar authorities.

[3.] This was done in an activity "in connection with the practice of law"—Continuing Legal Education events are certainly connected with the practice of law. (The event could be labeled a bar activity, if it's organized through a local bar association, or a business activity.)

[4.] The statement isn't about one person in particular (though it could be—say the debater says something critical about a specific political activist or religious figure based on that person's sexual orientation, religion or gender identity). But "anti-harassment … case law" has read "harassment" as potentially covering statements about a group generally, even when they aren't said to or about a particular offended person, and the rule is broad enough to cover statements about "others" as groups and not just as individuals. Indeed, one of the comments to the rule originally read "Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups." But the italicized text was deleted, further reaffirming that the statement didn't have to be focused on any particular person.

Or say that you're at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters—Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.

Again, you've engaged in "verbal … conduct" that the bar may see as "manifest[ing] bias or prejudice" and thus as "harmful." This was at a "social activit[y] in connection with the practice of law." The state bar, if it adopts this rule, might thus discipline you for your "harassment." And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you're fine; if you express the contrary viewpoints, you're risking disciplinary action.

This also goes beyond existing hostile-work-environment harassment law under Title VII and similar state statutes. That law itself has potential First Amendment problems, as I've argued and as some courts have recognized (though others have disagreed); see, for instance, the recent "Don't Tread on Me" controversy. But in most states, it doesn't include sexual orientation, gender identity, marital status or socioeconomic status. It also generally doesn't cover social activities at which co-workers aren't present; but under the proposed rule, even a solo practitioner could face discipline because something that he said at a law-related function offended someone employed by some other law firm.

And now we have a data point about the kind of speech that the proposal's supporters—here, Lambda Legal, one of the leading gay rights litigation organizations—want to restrict. The Arizona Bar is considering the proposal (for my statement opposing it, see here), and Lambda just submitted a statement in support. And here is one of the examples it gave, which I take it is an example of the kind of speech the Rule is intended to forbid:

In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as "he" and "him" when addressing or speaking about her. Prior to the hearing, he took her aside in a small room with four other people who were not identified to her to discuss the case. He then asked her whether she'd "had the full surgery," an inquiry about genital surgery. This experience was humiliating and dangerous for her. Violence directed at LGBTQ people has seen an increase in recent years. In 2016, among LGBTQ hate-motivated homicide victims, transgender women of color made up the majority of victims in the U.S. The attorney in this case purposefully disclosed the woman's transgender status to everyone within earshot and refused to acknowledge a core aspect of her identity. The judge presiding over this case did not take steps to address the misgendering and disrespectful treatment. Lambda Legal brought this matter directly to the attention of the judge, who responded with an acknowledgment of her responsibilities and assurances that any future misgendering or other disrespectful treatment directed to transgender people in her courtroom would be promptly and appropriately addressed.

Now if the rule were only aimed at restricting lawyer speech—especially government lawyer speech—in the courtroom, then it would certainly be constitutional as part of the court system's power to control speech in the courtroom (which is necessarily constrained by all sorts of rules, whether of evidence or of professional responsibility). The same might extend to speech in the pretrial litigation process. (How the legal system should reconcile some people's desire to be referred to using particular pronouns with some lawyers' desire not to be compelled to say things that they think are factually false is a complicated question, but I think courts would rightly have considerable discretion in setting the rules there.)

But the rule is deliberately not limited to speech that is part of the legal process; indeed, many states have such rules that ban discrimination and harassment within that process, and the ABA expressly went beyond that. The rule expressly covers speech engaged in while "participating in bar association, business or social activities in connection with the practice of law," and would thus cover Continuing Legal Education panels, political discussions over dinner at bar functions, and so on.

If you think X is really a man, but X identifies as a woman, and in a CLE or bar association debate on transgender rights you refer to X as "he," then under 8.4—as read by its supporters at Lambda Legal—you would be subject to bar discipline. Likewise if you're engaging in the same discussion in a social event at a lawyers' conference. After all, in Lambda's words, that is "misgendering and disrespectful treatment," and the comment to the Rule expressly says the rule covers "harmful verbal … conduct that manifests bias or prejudice." Better go along with with the pronoun orthodoxy, including in debates and in social events. And while Lambda Legal's response focuses on an example where "he" was used to refer to someone who identifies as female, presumably the same logic would apply if people didn't use other preferred pronouns, whether "they" to refer to people who insist on that, or "ze" or "hir" or whatever else to refer to people who insist on that.

Now I think that the ethical question of what pronouns to use for people who don't fit within the usual clearly-male-"he" / clearly-female-"she" mold is a complicated one. My tentative personal inclination is to go along with people's preferences as to "he" or "she," but to balk at "they" and at more innovative pronouns; but I'm not sure about the right answer, and I think it's worth discussing what it should be. As I said, the preferences of those who are being referred to surely count for something. But so do the preferences of those who are deciding which words to say, especially if they think certain words represent what they view as falsehoods (e.g., using "he" to refer to someone who the speaker thinks is not really male, under the speaker's understanding of the meaning of "male").

But I don't think this is something that the law, or the legally enforceable rules of a profession, should force on people, at least outside the courtroom and related aspects of the legal process. It certainly isn't something that should be expressly extended to "social" activities, even those "in connection with the practice of law," or to bar association panels or debates. Yet the logic of Lambda Legal's comments suggests that, if 8.4 is adopted, that is exactly what could end up happening.

NEXT: Judge Didn't Err by Refusing to Let Witness Testify With Her Face Covered

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  1. Sounds like LAMBDA Legal needs a good sanctioning! 😉

  2. How do you advocate for or against affirmative action if you don’t use prohibited terms?

    How do you correctly identify the defendant if you cant use prohibited terms?

    is dark skin offensive and therefore prohibited?
    What about is light skin – is it offensive?

    1. I think it is possible to discuss racial issues without using offensive terms.You might want to refer to people as “African-Americans,” for example, rather than as “n*****s.”

      1. Except the ethics guidelines mentioned above don’t apply to solely the extreme case that you’ve outlaid bernard. Wonder why you went to that example and not a more subtle example… hm….

        1. Why? Well, I don’t have an ulterior motive. I’m just suggesting that there are words that “manifest bias.”

          If you’ve read my comments on the various campus incidents reported here you know I’m not much of a fan of rules about speech and so on, or of protests that shut down speakers.

          So I don’t get what you are trying to say. Maybe, if there is any substance to it you could actually say it, rather than just substituting “hm.”

          1. pleading stupidity. That’s a change.

        2. How could the guidelines distinguish between “extreme” and “ordinary” cases? I get the impression that Eugene is arguing against an ethical rule (applied to social activities) that formally punishes any speech that would be protected by the First Amendment in other contexts where the Amendment would be implicated.

      2. If I demand that you address me as ‘Amos is a genius and bernard is a drooling moron by comparison’ and you refuse will you happily applaud as I get you thrown out of whatever job you work at?

        1. Indeed. If anyone ever tells me I must refer to them as “xir” or something else not obvious, I will tell them I want to be called “His Gristly Eminence, the Once and Future King of Proosia”.

          1. Speculative concerns that transgender accommodations will be used for bad faith shenanigans are quite common, yet real-life examples seem pretty thin on the ground.

            Pronouns are particularly easy, since pretext is not hard to spot.

            1. Cases have been reported under Title IX.

              1. [Citation Needed]

            2. “since pretext is not hard to spot.”

              How? The rules/logic behind the whole movement is that the requester is the sole and final judge on what he should be called. Second-guessing that choice is, per the rules, bigoted.

              1. Courts call stuff out as pretextual all the time.

                They use fancy language about reasonable tribunals and whatnot, but it’s mostly a know it when you see it standard.

                1. But, in those cases, there are objective facts. Here the issue is purely subjective by definition.

                  1. fake reply

                    That is, if someone says use ‘he’ today, you must use ‘he.’ If the same person says use ‘she’ tomorrow, then you must use ‘she.’ The fact it changes daily is irrelevant; after all, gender-fluidity is a thing, too.

                    1. Pretext is not about objective facts, it’s a determination of good faith/bad faith, just like here.

                      Might there be someone self-absorbed yahoo who gets off jerking people around by changing her preferred pronoun at will, and raging when they get it wrong? Sure. But I don’t think it’s going to be some subtle edge case.

                      You an make up all sorts of dumb ways to jerk people around with pronouns. But until it happens I’m not going to worry about it.

        2. The scenario of people taking advantage of transgender accommodations as loopholes for bad-faith hetero shenanigans is a common concern that doesn’t seem to have come up yet in the real world.

          Maybe because people can spot pretext like that pretty easily.

          1. Sorta double post with my 8:06.

          2. “The scenario of people taking advantage of transgender accommodations as loopholes for bad-faith hetero shenanigans”

            “hetero shenanigans”

            Surely you are not saying that trans is the same as gay. Most trans people id as hetero.

            Of course, one man’s request for accommodation is another man’s shenanigan.

            Folks always say that you others should use the pronouns that people ask them to use, but if you ask someone, “well, what if someone that you didn’t think was really a girl asked to be addressed as, ‘she’?”

            And people say, “oh, that would be a shenanigan. An edge case.”

            1. Nope, but the people who are presuming shenanigans seem to always be talking about straight perves, for whatever reason.

              The key to shenanigatiousness is in whether it’s bad faith or good faith

              There are all these scenarios about perves and/or horny teens getting into the other gender’s locker room, or in this case people wanting to be called wacky things. Those are all examples of bad faith. But there is no evidence thus far of such things actually occurring, other than right-wingers wanting to make a political point.

      3. I think that it is clearly not possible because I have no a priori way to know what you will find offensive. As the LAMBDA Legal accusations make clear, some people can manage to be offended at anything.

        I could perhaps be expected to comply with a ‘reasonable man’ standard of offensiveness – but that’s not the standard articulated by the rules above.

      4. Someone, somewhere, sometiime, will take offense at being called “Africa-American” and insist on being called “n*****r”.

        Taking offense and mounting a high horse and ranting about being triggered by trivia is the thing du jour these days.

        The State of Virginia labelled my family “colored”, the State of Tennessee labelled my family “white”, and I don’t give a diddly what some third party wants to label me. Get over it people.

  3. I’m not sure why you think the conduct of the prosecutor in the example was acceptable. It doesn’t seem that way to me.

    1. It was absolutely unacceptable, but does it rise to the level of professional misconduct?

      1. I have no idea.

        I suppose it depends on the penalties involved. I don’t think it merits disbarment, for example, but how about a 30-day suspension?

        Is it so trivial it should go unpunished?

        1. The DA’s office can punish him as much as it wants to. But what bearing does this have on his ability to represent clients who don’t care what pronouns he uses?

          1. TIP,

            I don’t understand your point. The guy is a prosecutor. He doesn’t have clients except in an abstract sense.

            Is that really the standard?

            1. The point is that, if the DA’s office is unhappy with his choice of pronoun or other questions, they are free to punish him as they see fit, including firing him. But if I understand your comments comments correctly, you would have him removed from the practice of law entirely, at least temporarily, no?

              1. TIP,

                Well, I guess I don’t think the DA’s office is the organization that should be responsible for disciplining him, or not.

                Should he be “removed from the practice of law?” I don’t know. It seems to me some discipline is in order, and I don’t trust the DA to administer it. As an outsider, a brief suspension for ethical violations, or even just a short probationary period, doesn’t seem way off base.

                My impression is that lawyers see these kinds of penalties as much harsher than non-lawyers, so maybe that accounts for our difference of opinion.

                1. That’s because lawyers understand the full effect of your proposed punishments much more than non-lawyers would. We see them as much harsher for the reason that they are much harsher.

                  1. OK.

                    Do you think that enforcement of professional ethics in the legal profession is adequate?

                    And what are the lesser penalties that are available? I once heard a lawyer friend talk about how some other lawyer got a letter from the bar association for some offense, and act as if it was the next thing to a death penalty.

                2. “I don’t trust the DA to administer it. ”

                  Why would you trust the bar association more?

                  1. Because he doesn’t work for the bar association.

                    1. In that case you’re definitely missing the point. If the DA’s office chooses to require its employees to use pronouns corresponding to the person’s gender identity, or to use pronouns corresponding to the person’s biological sex, or whatever, then that’s their prerogative.

                      But there is no reason to restrict someone’s ability to practice law because they used pronouns in a way that the bar association doesn’t like.

          2. Lawyers have a duty to be professional towards everyone in court, not just their clients.

            Judges should be the ones to enforce this, and it seems that this judge has pledged to do so.

        2. A 30-day suspension seems quite severe.

          It’s not trivial, but remember that if you attach a severe punishment then it’s far less likely to be carried out. This might not work out the way you desire.

          1. What would you do about it?

    2. The only non acceptable part was asking the defendant about medical operations. Nothing else was unacceptable.

      1. Discussing the case, and the medical matters, in the presence of unidentified individuals?

        Using the male pronoun even when directly addressing the defendant?

        Disclosing the transgender status to everyone standing around?

        Does he call black defendants “boy?”

        1. Does he call black defendants “boy?”

          If they’re male and under 18, why not?

          1. It’s disrespectful to anyone to be called ‘boy’ or ‘girl’. Sheesh.

            I mean, the net of all this is that all participants in a courtroom owe all the other participants a much higher degree of respect than is enforced for society at-large. What might be merely considered rude in other contexts can be beyond the boundaries in a court.

            Besides being unprofessional, rudeness doesn’t actually help one’s case, so you’d think lawyers would be calm and polite if only out of desire to be effective.

            1. “It’s disrespectful to anyone to be called ‘boy’ or ‘girl’. Sheesh.”

              This is patent nonsense. I refer to my daughter as a girl. If a lawyer is defending an adolescent client on the basis that he should not be prosecuted as an adult, I would hope the lawyer would have enough sense to refer to him using pronouns typically reserved for minors. Like boy.

              1. I’m not sure ‘referring my daughter as a girl” is what “be called girl” means.

                I don’t take it that way. It doesn’t even necessarily mean calling your daughter “girl” to her face — like “hey girl.” Of course — maybe that assumes too much — I’d note, that “hey girl” is a colloquism that in various non-professional contexts is widely accepted.

                OTOH, calling an adult “boy” or “girl” is fairly disrespectful. And, calling a teen “boy” — calling not “referring” — generally probably would to as well.

                Again, “patent nonsense” might be inapt because you are talking past each other.

                1. So the context here is a lawyer referring to another person as [X] in court. In that context, bernard asked “Does he call black defendants “boy?”” That is, refers to black defendants as boys. As DMN pointed out, that would be appropriate if the defendant was, in fact, a boy. nonzene countered that calling anyone a boy (or girl) is disrespectful. So nonzene either misinterpreted “call” in this context to mean speak to the person using boy or girl, rather than about the person, or he really believes that the latter is inappropriate as well. In either event, his assertion is wrong; when referring to my daughter in conversations with third-parties, I use girl all the time (even in her presence), and as you’ve pointed out there are circumstances where in fact it is appropriate to directly address someone as “boy” or “girl”. See, e.g., Notting Hill, “hey girl”, etc.

                  1. In that context, bernard asked “Does he call black defendants “boy?”” That is, refers to black defendants as boys.

                    No. Your “That is” is wrong. I meant, as in the quote in the OP, referred to or addressed.

                    I can say to someone else, “Why did NTOJ misinterpret my comment,” or I can say, “Tell me, NTOJ, why are misinterpreting my comment?”

                    In both cases, I have “called” you “NTOJ.”

                2. I’m willing to allow this might be a regional variation.

              2. And some people call their wife a dirty girl in bed too, but if a judge did it everyone would be up in arms! If you really can’t grok that I meant ‘outside an intimate or familial relation’ that just plain pedantic.

                1. There’s no reason for me to rise to the pedantic bait if you refuse to confront the fact that “call” in this context meant “referred to” rather than “addressed directly”. Are you willing to say that a judge referring to a female, underage victim of a crime as a “girl” is offensive and inappropriate? Are you willing to say that a lawyer referring to one of his own clients as a “boy” is necessarily inappropriate? In a custody dispute, how would you expect the judge to refer to the underage children at issue? Does your answer depend on whether they are present?

                  1. refuse to confront the fact that “call” in this context meant “referred to” rather than “addressed directly”

                    From the complaint:

                    The prosecuting attorney in the case repeatedly referred to her as “he” and “him” when addressing or speaking about her.

                    And I had both situations in mind in my comment.

                    Are you willing to say that a judge referring to a female, underage victim of a crime as a “girl” is offensive and inappropriate? Are you willing to say that a lawyer referring to one of his own clients as a “boy” is necessarily inappropriate? In a custody dispute, how would you expect the judge to refer to the underage children at issue? Does your answer depend on whether they are present?

                    Carefully chosen examples.

                    Are you willing to say that a lawyer referring to, or addressing, and adult woman as “girl” is appropriate?

                    Are you willing to say that a lawyer referring to, or addressing, an adult African-American male as “boy” is appropriate? Are you unaware of the history and implications of that form of address? Here’s a hint. The problem goes back a long way. You could look it up.

                    1. The prosecuting attorney in the case repeatedly referred to her as “he” and “him” when addressing or speaking about her.

                      Color me sceptical. The claim is that the prosecutor addressed this person using 3rd person singular pronouns ? The prosecutor pulled himself up to his full 5 foot 5, and said to the transgender defendant :

                      “Hey him ! Have he had the full surgery to turn himself into a gal ?”

                      You’d have to try really hard to pull that out of your head, and you’d screw it up. We learn to use “you” and “your” before we’re three. It’s a habit that’s hard to break.

                      On the other hand, it’s very hard to really master new personal pronouns that you didn’t learn as a kid (which is why these new transgender ones will never catch on outside gender studies laboratories.) Mrs Moore who speaks excellent English despite not being a native speaker quite often mixes up he and she and him and her, because her native language doesn’t make that distinction and she didn’t start speaking English till her teens.

                    2. “From the complaint…”

                      I thought this was from the statement in support submitted by Lambda Legal. Do you have the complaint handy?

                      “Are you willing to say that a lawyer referring to, or addressing, and adult woman as “girl” is appropriate?”

                      Of course not. Then again, the claim I’m fighting is “It’s disrespectful to anyone to be called ‘boy’ or ‘girl'”. The evidence against the claim could be one “Carefully chosen example”. And the shit about calling an adult black guy a boy is pointless. DMN is talking about a person who is under 18. You know god damn well that we aren’t talking about some redneck sheriff referring to an adult black person as a boy; rather we’re talking about situations where the defendant is, in fact, a male child (i.e. a boy). Is your view that no lawyer, ever, may refer to a adolescent male child (who happens to be black) as a boy?

        2. Lot of assumptions in that.

          The “unidentified individuals” could be clerks, paralegals, or assistants (the way it’s written, I got the sense that the individuals were with the prosecutor, not random people). Since those individuals would have access to the case file (which, being a prosecution, would include the defendant’s identity and gender), it wouldn’t be disclosing anything surprising to those individuals.

          It also seems the prosecutor asked about “full surgery” because he wanted to use what he thought was the correct pronoun/identity for the person. Certainly clumsy and a bit invasive. But he probably thought of it as a way to be respectful. Honestly, until a few years ago, I don’t think anybody would have been surprised at using the “full surgery” as the demarcation between male and female.

          And assume the defendant did not yet have the full surgery, I can understand why the prosecutor would use the male pronoun, even if its not the one the defendant preferred.

    3. The prosecutor’s behavior was fine, and the complaint was hysterical.

      1. Got myself a better internet connection now.

        The thing of it is ? either your “identity” is a private thing, perceived only by you, and used only by you. Or it’s a social thing, perceived and used by others as well as you. In the context of interpersonal relations it must be the latter not the former. Consequently “misgendering” is simply a difference of opinion between different perceivers and users, not a mistake. Your face is your face, but your view that you are good looking, square jawed and a bit like Gregory Peck is your opinion. Sure others may share your opinion, but others may feel you look a bit more like Walter Matthau and that you are very far from good looking.

        If in a social or professional setting you insist on your resemblance to Gregory Peck, nobody else has the slightest obligation to humor you by accepting you at your own estimation. People may choose to do so, but that’s up to them.

        1. Lee,

          Would it be OK for a prosecutor to refer to a male defendant as “she?” What if the defendant were somewhat effeminate, and it was clearly done to mock him?

          1. I’m not Lee, but I don’t see that as an apt comparison. Language developed such that “he” referred to biological males, no matter how effeminate. So a male dressed in drag would still be a “he.”

            It’s only recently – what, 30 years maybe – since people could change genders. And it’s only been the last few (certainly less than 10) that it was common to hear about pre-surgical or non-surgical changes. So language and social graces haven’t quite evolved yet.

            Point is, if the defendant was pre-surgical, I can understand why the prosecutor would refer to the defendant as “he,” even if that person identifies as a “she” or intends to have the surgery to become a “she.” It’s not necessarily to be offensive; it’s to be consistent with how language has operated at all points until recently.

            1. Steady with this changing of genders thing. it has six different meanings before breakfast, which shapeshift according to political necessity.

              1. There’s what sex you think you are..
              2. and what sex you’d like to be…
              3. and what sex you’d like to be treated as

              These are not the same thing. In the real world gender “uncertainty” in those who are uncertain about 1-3 is very inconstant (by which I mean most “uncertain” people do a lot of flipping about, and many settle down comfortably to a non dysphoric equilibrium. Though a few do manifest persistent dysphoria.)

              Surgery is a separate matter, to do with mitigating the dysphoria by adjusting your physique to your preference under 1-3. Sadly, under the current state of technology, surgery is no more successful in resolving dysphoria than non surgery, no doubt because the results convince neither the subject or third parties. Though, as you hint, in some cases surgery may be enough to persuade some third parties to go along.

              But all of this assumes – wrongly – that when people refer to men and women, or male and female, they are talking about gender (ie 1 to 3). Generally they’re not. They’re talking about sex. And sex – in humans, in the current state of technology – doesn’t change. All you can do, surgically and/or hormonally, is adjust some secondary sexual characteristics to help mitigate the dysphoria of the gender dysphoric.

              1. “Sadly, under the current state of technology, surgery is no more successful in resolving dysphoria than non surgery, no doubt because the results convince neither the subject or third parties.”

                I suspect this is less due to the limitations of the surgery, than it is to the fact that the victim of a dysphoria IS dysphoric. Surgery can’t cure gender dysphoria for the same reason diets can’t cure anorexia: The problem is in the brain, not the rest of the body.

                1. Up to a point Lord Copper. If gender dysphoria consists in psychological distress at the contradiction between the evidence of your body about your sex, and what your brain is telling you about what you are, or what you “really” are if only that hadn’t been some kind of a mistake with your body, then the conflict can be resolved either by :

                  (a) adjusting the body to match the brain, or
                  (b) adjusting the brain to match the body

                  (a) is a surgical / hormonal solution, (b) is a psychological solution. As I suggested earlier, (b) quite often happens naturally or with time or with counselling. And I suspect (a) works well enough with folk who are really happy with their adjusted bodies, even if they still can’t play their preferred reproductive role. But I just don’t think surgery and hormonal treatment are up to the task in the majority of cases.

                  And of course if the brain is a moving target, as it often is, then surgery / hormones may be trying to solve last year’s brain.

            2. “since people could change genders”

              They still cannot.

          2. Yeah it would be OK. Whether it would be wise is another matter. And just for the avoidance of doubt, “mocking” is a no-no in court ? Nine tenths of the criminal bar would be out of work if they were not permitted to cast aspersions on defendants’ or witnesses’ veracity, using the usual bag of tricks, mockery included. Hell, even SCOTUS opinions do not eschew mockery. And getting witnesses to lose their temper, well that’s Lawyering 101.

            Obviously in court, there’s a case for some rules about decorum. but I see no value in insisting that counsel actually lie to preserve it. So in your example, if counsel knew perfectly well that “she” was a “he” and just used “she” as an insult or a wind up, then maybe (but hard to police). But if counsel genuinely believes that “he” is a “she” and the belief is at least reasonable, then I don’t think any decorum rule can insist on “he” however much “he” is upset by the “she.”

            Compared with the deluge of immune prosecutorial abuse we see daily, declining to humor a man who’d prefer to be a woman, even a man who genuinely believes he is a woman, doesn’t even make it to nothingburger.

            None of which is to say that gender dysphoria is anything other than a genuinely pitiable malady. But the display of pity is not the job of prosecuting or defending counsel. Though defending counsel will often go through a well worked “show us your sores” number to impress callow jurors.

        2. This was subjectively rude for no objective utility.

          We should hold those representing the people to a higher standard.

          1. Even in a civil case, folks in a courtroom should be held to a higher standard than an internet flamewar.

          2. No objective utility? How about facts and truth instead of obfuscation and lies?

            Should we call a person practicing medicine without a license a Doctor because they believe they are one and have been running a clinic as one?

            1. Notably, your argument switches to a situation where there is manifest utility. Which shows somewhere you understand truth alone is not enough.

              Even assuming your understanding of gender is undeniably true, courtesy is not about truth value. It is about the fact that absent some other benefit, there is more value in social comity than radical veracity.

              For people whose identity is caught up in their radical rejection of the establishment, being discourteous becomes a signal of their…virtue. Huh.

  4. Don’t worry about which pronoun to use. Simply refer to the defendant/plaintiff as “The Freak” and note in your brief that it will henceforth be referred to as such.

    1. Its pathetic and sad on the extremist right in this country has chosen to vilify a segment of society that doesn’t impact them in the least.

      1. Sadder still is the inability of the left to know the difference between “Its” and “It’s.”

      2. Oddly it is only the left that is trying to make the behavior of the other, or vilify, a crime.

        1. Odder still is the fact that the right uses “vilify” as a noun, and does not understand the difference between professional misconduct and crime.

          1. Weeell, the line between professional misconduct and crime gets a bit blurry if the state can punish you for professional misconduct.

            1. Denying the ability to earn income is quite a punishment.

              Worse than probation or maybe even a short jail stint.

              1. Don’t underestimate the burden of jail or probation on earning potential.

                But more importantly, this sounds almost like you’re advocating for some serious government regulation of the marketplace?

                1. “But more importantly, this sounds almost like you’re advocating for some serious government regulation of the marketplace?”


                  Just pointing out that government can hurt people through other means than the criminal law.

                  Government is just the hurt we inflict on others.

                  1. Isn’t this about a private organization’s internal regulations?

                    1. Most states follow the ABA model rules for mandatory discipline.

                      Today the ABA, tomorrow your state supreme court.

                    2. So regulate the ABA as though it were the government?

                    3. No. This is about the state’s regulation of lawyers. (The ABA is a private organization, but its model rules are not internal regulations; they’re generally-followed recommendations to the states about the rules they should adopt.)

                    4. This just got substantially more geeky.

                      Is there case law finding a sufficient nexus via ‘generally-followed’ to give federal courts a jurisdictional hook to enforce the Bill of Rights on them?

                      Now that I think about it, I’d bet you would need to wait for the state that has adopted the rule to act and challenge that action. Though then the remedy is state-specific and wouldn’t go to the ABA generally.
                      Anything else would allow states to unilaterally pull private institutions into Constitutional jeopardy by adopting their rules.

                    5. Yes, there’s no constitutional challenge to a private organisation adopting regulations for its members that restrict their speech. The challenge comes when the government establishes those rules in law. Precisely what the challenge is then depends on what has been established in law and how.

                      As somebody said somewhere in this thread we need not to confuse the ABA (a private club) with a State Bar (a government licensing system)

                2. So you’re good with sending a physical male to the physical female area of a jail?

      3. They’re demanding that we entertain and celebrate their delusions. So yes, it does impact us.

        1. “celebrate their delusions”

          Right, its not enough to be tolerant, you have to actively pretend.

    2. In ancient times (100 years ago), persons were simply addressed and referred to by their last names. That should suffice in a court.

      Also it is difficult to understand the objection to the use of they and their. Both are real words and gender neutral.

      1. There is a long tradition in English usage of they/their/them as third person singular nongender-specific pronouns. They was used when referring to an unspecified individual in situations where the he/she his/hers him/her construct would be awkward, or where using he/his/him or she/hers/her would be implying gender specificity where generality was intended..

        In the case under discussion I think that was a specific individual presenting the appearance of a specific gender.

        The prosecutor was rude and insensitive, but so are most transgender warriors, for that matter. I suspect by law for the court record references to an individual identification has to follow official government records: short form, what’s on the DL.

        For the court record, how would one identify a gender fluid individual who feels like a he on Tuesday, but a she on Thursday?

      2. The rule isn’t limited to statements made in court.

        FWIW, use of ‘they’ and ‘their’ to reference a single individual often confuses me; I keep asking ‘who is the other person in that sentence?’ I shudder to think that it might cause legally significant confusion too.

  5. The best way to overcome the rule is to strictly enforce it. My preffered pronoun is “LAMBDAisanIdiot”.

  6. So a progressive attorney could potentially be disciplined for pontificating about “white privilege”, the patriarchy, and straight white males controlling society at a bar event?

    (and leaving aside the fact that “verbal conduct” borders on oxymoron….)

    1. Maintaining decorum in court is part of the cannons of ethics. Maintaining it at bar events is not.

      1. Surely the latter would be the end of the profession.

      2. I like the concept of “cannons” of ethics.

        “The prosecutor has been unethical. Strap him to the cannon’s muzzle and fire away.”

      3. Court ethics would benefit if the cannons of both prosecutors and defenders were of high caliber.

        [I know you meant canons. I blame typos on autocorrect when i can get away with it. I suspect it happens a lot these days. I try to compose in notepad or vedit on a laptop and never post from a phone.]

  7. “The clingers refuse to address people by their preferred terminology. For example, I clearly refer to myself as reverend, but the right-wing goobers only address me by my preferred title when they’re being sarcastic.”

    /Rev. Arthur Kirkland

    1. When you dream of me, do you hear this song?

      (For those conservatives who still can’t abide all of this damned race music, here’s the whitewashed verson.)

        1. Accidentally made the joke more pointed.

  8. We presumably only enter constitutional / unconstitutional territory when the government requires a lawyer to be a member of a bar association in good standing in order to be allowed to represent a client, or hold himself out as a lawyer in practice. Or when a legislature encodes bar association rules on a statutory basis.

    I have a vague feeling that Prof Reynolds mentioned the Tennessee legislature declining to adopt a similar clause into State law. But I can imagine that the details might get rather messy from State to State depending on precisely how the bar association rules are incorporated. In some cases it might be easy to make a simple surgical incision, to remove the statutory effect of the offending rule. In other cases the whole State regime for accrediting lawyers might get blown up.

    But presumably, the main – and intended – effect isn’t dependent on the constitutionality of such rules. Few lawyers are going to want to risk of their accreditation by beating their chests about the 1st Amendment, unless the State goes out of its way to protect lawyers who prefer to select their own pronouns.

    1. You’re confusing ABA-affiliated voluntary associations with official state Bars. In this case, the Arizona Bar (or “State Bar of Arizona”) is an official licensing organization managed by the Supreme Court of Arizona for the practice of law in the state. So, any rule adopted by the SCoA for the Arizona Bar would be binding on all lawyers who intend to practice law in the state.

      Yes, names are confusing, especially the ABA and affiliated state associations, which are all voluntary and came about prior to some official state Bars and posterior to some others.

  9. Just follow the example of the liberal hymnals which avoid mentioning God’s gender.

    “The defendant took out the defendant’s gun and shot the defendant’s neighbor. Then the defendant fled in the defendant’s car to the defendant’s beachfront hideway, where the police finally caught up with the defendant.”

    1. What exactly is God’s gender, and how do we know?

      1. That’s what the hymnal compilers would like to know.

      2. God the father, Jesus the son, and the presumably genderless Holy Spirit. The mystery of the Trinity as laid out in the Bible. That’s answer enough for the world’s about 2 billion Christians.

        I suppose we will all find out when we’re dead, one way or another.

        1. Just to be clear, in your theology does The Father have testicles? Or is it figurative?

          I mean, Mary gave birth without every knowing intercourse, so it isn’t strictly necessary for god to have testicles . . .

          1. One of the mysteries of the faith. Like the ending to the Sopranos, you’re not going to know all the answers and have the loose ends tied up just because you want them to be. You’re assuming the creator of the universe has to think the way you do.

            But if you’re going to go harsh the mellow, an answer that fits within your worldview is that it would be that natural for ancient patriarchal civilizations to have the aspect in charge in their mythology be male.

            1. One of the mysteries of the faith.

              So you don’t know. You just believe. OK.

              But others may feel differently.

              That’s answer enough for the world’s about 2 billion Christians.

              So we decide these questions by majority vote?

              1. You gave a pithy reply, but got a serious response. Is that what you wanted?

                So yes, about 2 billion of use believe about that, give or take some variation among the denominations. Like I said, we will all find out the truth when we die. Perhaps you can be the first to report back?

                Never said, nor implied, that it was a majority vote, and only one looking to provoke would suggest that I did. You are free to practice what religion or non-religion what you want, as long as you don’t try to impose it upon me. I merely noted that about 2 billion people on this planet believe that God is a “he” or at least 2/3 of God. Again, mystery of the Trinity and all that.

          2. “Just to be clear, in your theology does The Father have testicles?”


            “Or is it figurative?”


            No human knows since God has not revealed.

            1. Not to you, maybe.

              1. Entirely possible the creator of the universe revealed himself in all his glory to some accountant in Nebraska somewhere and we never hear about it. Ya never know. Be sure to report back to all of us if you have anything as such happen to you, and I will if it happens to me. .

            2. No human knows since God has not revealed.

              Sort of my point.

              1. Why would God, if you believe he exists, take the time to reveal his inner mysteries to bernard11? Are you upset that he hasn’t?

                1. mad_kalak, your question suggests that you are “assuming the creator of the universe has to think the way you do.” Why wouldn’t God take the time to reveal his inner mysteries to bernard11?

                  And since you referenced several billion Christians, presumably God has taken the time to reveal a set of his inner mysteries to someone, somewhere, right? Or are you confessing that Christianity is not premised on the received word of God?

  10. I generally agree with the gist of this post, and I prefer to be referred to as “they/them” if anyone who is curious would like to discuss that

    1. Trolling, bait, or serious attempt by a trans to discuss in a rational manner?

  11. To me, the gist of the matter is that “the preferences of those who are being referred to surely count for something, but so do the preferences of those who are deciding which words to say.” Why //should// one’s freedom to speak be subject to the //fluid// preferences of another?

    Besides… aren’t there more important concerns, some of which aren’t vocalized as loudly as transgender concerns? For example, Virginia prohibits age discrimination in places of public accommodation, yet many Virginia concert venues levy — and even advertise that they levy — a cash surcharge at the door upon adults of ages 18-20 (that is, adults who cannot purchase alcohol) who wish to enter.

    1. mdn, one’s freedom to speak inside a courtroom is greatly constrained by professional decorum.

      On the street, it’s rude but not criminal to refer to someone contrary to their preferences, just as much as it is to call them an asshole or use any other kind of impolite language. But you wouldn’t refer to someone as an asshole in court.

      1. …unless “asshole” is that person’s preferred designation. How is one to know, a priori, what a person’s preferred designation is? Am I “he” or “she” — and if you guess wrong, should you be punished for lacking decorum (be it inside or outside of a courtroom)?

        1. Of course not. But after being politely and privately corrected and requested to refer to you as he/him, it would be quite lacking decorum for me to persist in call you she/her.

  12. It is ridiculously hard to get transgender pronouns “right,” regardless of what you think about them. I’ve litigated with a transgender attorney and everyone messes it up. The judges, the attorneys, the parties and witnesses. Whether they knew the attorney before or not. It shouldn’t be misconduct in the first place, but even if you reject that position, nothing short of someone saying “I don’t care and I’m calling you he” should constitute misconduct for the simple fact that it’s way to hard to figure out whether it’s intentional at anything less.

    1. They need to get it right or they’ll be imprisoned or disbarred.

      Now bake me that cake.

    2. “I don’t care and I’m calling you he” shouldn’t constitute misconduct, either, assuming the person being called has at least one X chromosome.

      The basic problem isn’t just that it’s hard to figure out. It’s also that you’re proposing to sanction somebody for failing to humor somebody else’s delusions.

      This is ‘How many fingers am I holding up, Winston?’, territory. Seriously, it’s exactly that.

      1. I can only imagine Brett is one of those people who will stomp his foot and not apologize or thank people if he doesn’t mean it.

        1. That’s when they get the rat cage and heater.

          1. This is where I make a joke about lawyers, rats, and professional courtesy.

            1. Considering what I think about lawyers in general, I hope you believed I laughed out loud at that.

            2. Thought that was the shark joke (which I heard from a lawyer at a Mensa meeting BTW).

              1. Professional courtesy!

        2. Nah, arthritic ankle, I avoid foot stomping.

    3. MM – whether it’s negligence or intent is up to the finder of fact, no? The facts in the OP sure make it sound pretty intentional and persistent.

      1. Sacastr0,
        I’m not sure if you practice employment law, but intent is not an element when it comes to hostile work environment. ABA’s comment to the model rule cites the employment law standard for hostile work environment. So no, intent vs negligence wouldn’t be a question for the finder of fact.

        1. I’m happy to say I’ve stayed quite far away from employment law in both education and career.

          What is the standard then – objective/subjective test?

    4. It is ridiculously hard to get transgender pronouns “right”

      Of course and that’s two thirds of the point. If you have to keep half your mind on not tripping over vocabulary hurdles that have been erected to interrupt your flow, that half of your mind that isn’t available for constructing and maintaining your line of argument.

      There used to be – a long time ago – a light hearted BBC radio show in which panellists had to talk for “Just a Minute” on a topic selected with no advance notice without hesitation, deviation or repetition. The panellists were clever, witty and experienced – they did it every week. But usually they’d fail within ten seconds or so. The challenger (the contestant who had spotted a hesitation, deviation or repetition) would then take over to try to complete the minute. But would usually get caught very quickly.

      Making an argument, and making an argument while climbing over a fence with a blindfold on, are chalk and cheese.

  13. The meaning and intent is clear:

    Nothing that you should say, do, or THINK should at any time interfere with the social agenda of the ABA.

    Professors of law should know better

  14. The second most disturbing aspect of this essay is that the lawyer author sees no problem in the system of lawyers that rules over American life restricting how people can speak (aside from with civility) in the legal system. As the reach of the legal system continues to expand, it inevitably impinges to a greater extent on non-legal society, and there is no mechanism to prevent it from ascending to totalitarian heights. Some argue that it has already reached those heights. But we are all supposed to bow to the superior power and status of lawyers, and allow them to control the system that controls us. The more I read the Volokh Conspiracy, the more troubling it is to read “libertarian” lawyers defending the hegemony of their profession. Most Americans can ill-afford to pay for assistance by members of the legal cartel, can’t understand the complex language and rules of the cartel’s system, and now must bend to the oppressive will of the cartel in determining how they can speak of highly controversial issues. VC consistently demonstrates that loyalty to the cartel overrides any theoretical fidelity to liberty.

    1. Is the most disturbing aspect your failure to understand that this blog post is only about regulating how lawyers can speak?

    2. You realize Prof. Volokh is arguing AGAINST the ABA model rule 8.4(g), right?

      He’s hardly demonstrating loyalty to a cartel.

  15. It’s strange that such a measure should be adopted in the name of fighting harassment, when its main goal seems to be harassment.

    1. Gay advocacy organizations seem to enjoy bayoneting the wounded after victory.

      1. I’ve never seen a more petty group of tyrants than the LGBT “community.”

          1. My opinion is that radical 3rd wave feminists are a pettier group of tyrants, but don’t usually get the opportunity for power. LGBT community and the feminists are just a sub-category of SJW.

  16. The traditional resort of people unable to use reason to get their way is to use force.

    In the 1830s, John Calhoun argued for a law prohibiting sending abolitionist literature in the mails. He used arguments almost identical to the ones being used here. The proliferation of abolitionist agitation harmed slaveholders by making them feel like second-class citizens in their own country.

    After all, he said, everybody knows that every enlightened persons thinks there is nothing wrong with slavery and none doubts science has proved it is the negro’s appropriate status. Only irrational, hateful religious time continues to agitate against it. He thought it was time for the country to end the hate and for the haters to accept they were wrong and move on.

  17. Sorry, religious types. Calhoun was an advocate of Unitarianism, a modern, progressive, enlightened, scientific religion unencumbered by dark-age superstitions, such as hangups about slavery.

  18. Dr. Jordan Peterson leads the way, having ridden this PC language controversy out of academe and into the public consciousness. ’12 Rules’ is a great book, and the first bestseller I have read in many years!

    1. Is that the government should regulate monogomy in the sexual workplace guy?

      I think right-wing fame may have made him crazy…

      1. Another quote taken out of context. Like usual, the Times did a hit peace. He was talking about societal norms that value monogamy and work to enforce it. Some might consider it alien and weird to think this way, but children and families, and ultimately societies, do better with families that stay together because mom or dad are not banging someone they met on Tinder.

        And it’s “sexual marketplace” not sexual workplace.

        1. but children and families, and ultimately societies, do better with families that stay together

          Unless wives don’t count, the answer is quite convincingly ‘no’.

          In states that introduced unilateral divorce we find a 8?16 percent decline in female suicide, roughly a 30 percent decline in domestic violence for both men and women, and a 10 percent decline in females murdered by their partners

          1. Trade-offs exist you know.

            When controlling for socioeconomic status, race, and place of residence, the strongest predictor of whether a person will end up in prison or on drugs is that he or she was raised by a single parent. You will find those findings replicated again and again. And don’t tell me “correlation does not equal causation” because the causal mechanism by which a single parent can fail a kid is well understood.

            “The most reliable indicator of violent crime in a community is the proportion of fatherless families.” Single-Parent Families Cause Juvenile Crime (From Juvenile Crime: Opposing Viewpoints, P 62-66, 1997, A E Sadler, ed

            Our prisons are filled with poorly raised brats. Not good for society.

            Peterson did not argue for or against no-fault divorce (you’re putting words in his mouth) merely, and I quote from his blog; “socially-promoted, culturally-inculcated monogamy.” “It’s been a truism among anthropologists and biologically-oriented psychologists for decades that all human societies face two primary tasks: regulation of female reproduction (so the babies don’t die, you see) and male aggression (so that everyone doesn’t die). The social enforcement of monogamy happens to be an effective means of addressing both issues, as most societies have come to realize (pair-bonded marriages constituting, as they do, a human universal (see the list of human universals here, derived from Donald Brown’s book by that name).”

            1. Correlation is not causation.
              Especially here, where the causation can be easily seen going the other way.

              So far, this sounds like 1990’s Republican talking points with bigger words.

              1. Blah, blah, blah. Longitudinal data, many replications, triangulation of the conclusions based on different datasets, and qualitative investigation into the causal mechanisms of WHY kids from single homes are more likely to do drugs and be criminals dispense with that typical retort.

                In short, fathers usually have jobs to help support the family, keep them out of poverty, and provide a role model, especially for male children, the very same group that is most prone to violence and criminality. Single parents also cannot invest the time in training, education, and general guidance that an intact home have. Anyone who is a parent understands that last point. No one can do it all, and not every single parent can afford a nanny. Something is always left on the table.

                Again, every time this is brought up, somebody carps about X person who came from a single home and who is a CEO/Doctor/Lawyer/Professor. But think about it like this, a person who eats lots of sugar to excess is not certain to get diabetes, and a person who doesn’t eat sugar to excess can still get diabetes, but there is lots and lots of data that shows that eating sugar to excess gives you diabetes.

                Uncomfortable truths, but there they are. Don’t let the use of said data by your ideological opponents for policies you don’t admire make you say that the sky isn’t blue. Argue for different policies.

                1. I mean, being murdered by your spouse is also pretty uncomfortable.

      2. Give me a break. it’s not what he said at all.

        What is it with people taking second hand information and pasting the guy so as to take everything he says out of context?

        So tiresome.

        1. Then what does he mean by enforced monogomy?

          Because that sounds pretty anti-liberty to me, no matter how you slice it.

          1. Read his blog about the controversy and see for yourself. It’s a short post. I don’t know how to make clickable links yet, but if you go to you’ll see the post about it.


            1. I read it. Can’t tell if it’s a backpedal or not.

              But I also think it’s advocating off of a pretty juvenile set of assumptions about women, and people generally.
              Attraction is not very amenable to economic analysis.

              1. It’s obviously not a backpedal, because obviously he doesn’t support government enforced monogamy, he favors cultural and societal encouragement of monogamy. It’s the difference between disapproving socially of, even to the extent of denying golf club membership to, people who insist on calling African Americans “nxxxxxs”; and demanding that the government ban them from their employment, or fine them.

                It’s clear that he used a term of anthropological art, distinguishing genetic from environmental monogamy and the journalist didn’t understand it and didn’t bother to check what he meant. We don’t need to assume inveterate hostility and deliberate misunderstanding on the part of the journalist – we can merely note that she didn’t feel the need to check. Perhaps – like you – she had heard nothing about the guy except for liberal bubble hit pieces and on hearing him say “I like to eat a couple of toasted African American children for breakfast ” she just assumed “Well, that’s pretty much what I was expecting.”

                1. As to attraction and economics – attraction is amenable, in part, to economic analysis – specifically that on average females find higher status males attractive, and in our society economics contributes, to some extent, to status.

                  The point is that in a very unequal society (not merely unequal as to wealth, but as to status and social success) quite a few women prefer to be the Duke’s fifth mistress rather than the stable boy’s wife. This is not because the female calculates the cash return on the Duke concubinage, but because she just doesn’t find the stable boy attractive – he’s too much of a loser. In such societies, the male losers are more violent. For obvious reasons.

                  1. advocating for policy based on assumptions that are only marginally relevant to the area you’re regulating is not wisdom.

                    1. “Attraction is not very amenable to economic analysis.”

                      Oh, it most certainly is, in fact the sexual marketplace is perhaps the best test of many economic ideas.

                      “advocating for policy….”

                      Peterson advocated for no government policy in this case, at most social mores.

                      “….based on assumptions…..”

                      You’re as unversed in the literature as the Times reporter, they are not assumptions.

                      “…that are only marginally relevant….”

                      Male criminality, the rise in single motherhood, and the social costs of the welfare state isn’t important? Maybe you missed the TV/movie characters based, on and bazillion articles in the mainstream media, about men not willing to “man-up” and get a job and get married. People other than Sarcast0 think it is relevant.

                      “….to the area you’re regulating…”

                      No one is advocating government actions. It is the default thinking of liberals, though, if I may paraphrase Vanilla Ice; “if there is a problem, yo, the government will solve it”

                      “…is not wisdom.”

                      First take the plank out of your own eye, and then you will see clearly to remove the speck from your brother’s eye.

                    2. I am aware it’s not government policy, but social policy is still policy. And from the quotes above, he means for some pretty serious social pressure.

                      The assumption that people are economic creatures of limited validity (more and more so as the science matures), and without taking into account other paradigms, is morally stunted.

                      The relevance comes from your statement ‘amenable, in part,’ not from some attempt to deny that there’s a problem with boys being horny and frustrated. That statement is qualified to the point of undercutting the utility making policy based solely on your economic insights (assuming they’re true).

                      I’m a dumbass who fools a few people by using big words. I’m also pretty sure Peterson is about the same.

                    3. “Social policy” is called culture. Policy, per se, requires implementation, and is thus top down. Culture is bottom up and voluntary. Bottom up social change is not “policy.”

                      You’re thinking of Rational Choice Theory, which, you are correct in thinking is of limited utility in that we are not 1) all rational 2) possess enough data to make rational conclusions, and 3) assumes a rational system in which the actor operates. However, Economics isn’t just money, it’s about understanding choices. The economic ideas of cost-benefit analysis analyses, declining marginal utility, supply and demand (to just name a few) are of very effective use in analyzing the sexual marketplace. Example: Men used to get married to have, among other things, a ready supply of sex from their wives. When you socially remove the obligation women had to provide it (close your eyes and think of England) with a ready supply outside of sex outside marriage that it is socially acceptable to obtain, do you wonder why marriage rates are in decline?

                      Peterson gets things wrong at times, and I wonder why some Canadian professor’s message resonates so much when even a semi-religious type has heard from the church or synagogue his message about responsibility, to “clean your room” and to get your own house in order before you criticize others. He himself has said he is best at aggregating ideas and data, but don’t let that fool you into thinking he’s stupid (though I appreciate the self-deprecation).

                    4. Not sure what policy or assumptions you’re talking about, but if we’re still on Peterson, male violence and monogamy, I think you’re probably the one bandying loose assumptions about.

                      Peterson is quite fond of pointing out that for all the political whining about IQ, if the statistics generated by IQ researchers are invalid, you can throw out the whole of the rest of the social sciences, because the rest of the social sciences use the statistical methods pioneered by IQ researchers, but don’t get the same degree of validity and consistency in measurement as IQ, and have statistically weaker correlations with real world outcomes than IQ.

                      But Peterson concedes one exception. The correlation between male violence and high levels of inequality in the social structure is even higher than that between IQ and life success. (Peterson’s willingness to point this out, of course, demonstrates the absurdity of the meme that he’s rampantly right wing.)

                      There’s a ton of evidence linking male violence with high inequality, and a ton more linking marriage with lower levels of male violence, both at the level of society, and for individuals – ie violent young men who get married become less violent than their peers who don’t get married.

                    5. There is middle ground between IQ is bunk and IQ is a perfect metric to track intelligence and success.

                      How does one measure ‘inequality in the social structure?’ Was it less unequal in the 1950s?

                      And can you spot the issue with marrying off ‘violent young men’? Hint: what about the young woman?

                      This seems like statistics serving a preferred policy regime. More of a vision than a policy, really.

                    6. “How does one measure ‘inequality in the social structure?’ Was it less unequal in the 1950s?”

                      That’s actually a very tricky issue. Wages have stagnated and the rich are richer, but total compensation overall for workers has increased because advances in health care (and insurance costs) make up for much of the difference. Standards of living have increased greatly because production costs due to automation make staples and what were once luxuries readily available. The poor have a TV, and Xbox 1, plenty of food, air conditioning, smart phones, and live like the top 10% of the early 20th century. Go back further, and the middle class American has the standard of living (minus the sword of Damocles hanging over them) of a Roman emperor.

                      “And can you spot the issue with marrying off ‘violent young men’? Hint: what about the young woman?”

                      Chicken and egg. Men in societies where there is not access to women tend to become violent, it’s not like they are killers who should get married to have the women tame them. Furthermore, plenty of women like violent men, as that is a proxy for high status.

                    7. There is middle ground between IQ is bunk and IQ is a perfect metric to track intelligence and success.

                      Sure, you’re entirely free, using whatever measuring spoon you select, to say that IQ is Warp Factor 3 bunk. But if you’re using that spoon, you are required to concede on any measurement claim on any subject in the social sciences that it’s at least Warp Factor 4 bunk.

                      With one exception. The link between inequality and male violence.

              2. Sarcastro : Attraction is not very amenable to economic analysis

                This may be a confusion of two related, but ultimately rather different, senses of “economics” – which may be the study of

                (a) the production, distribution and consumption of goods and services

                (b) scarcity

                I agree (a) doesn’t have much to do with attraction. But (b) is central to it.

          3. He was talking about enforcement or coercion by the STATE.

            In fact, the whole reason he became famous was BECAUSE he challenged the government compelling speech through C-16.

            He’s absolutely correct.

  19. The number of people who are insisting that common courtesy is about making themselves feel validated…

    Since when has the truth had anything to do with whether or not you’re being rude?

    1. But your honor, the defendant really is an asshole and I should be allowed to refer to them as such!

  20. The right to live your life as you choice does not extend to dictating how other lead theirs. And that includes their belief and speech about path someone has chosen.

    LAMBDA legal seems to forget they are advocating for the same strict doctrine they’ve been fighting against for years.

    1. Surely the right to live your life as you chose does not extend to your decorum inside a court.

  21. The ABA lost all credibility when it supported Windsor and Obergfell.

    1. Lost credibility with whom? Not with the left. You gotta remember that by embracing “progress” or some such they are actually gaining credibility in the eyes of many.

      The ABA has been made into a hollowed out skin-suit since at least the 1990s, and it was G.W. Bush who ended in 2001 their screenings of candidates for that very reason.

      1. Lost credibility with people who actually believe in the meaning of language, the rule of law, and our system of federalism. The ABA is now a mouthpiece for the Democrat Party.

        1. >mouthpiece for the Democrat Party.

          Everyone has known that since the original ‘Borking.’

          1. Of course, but it’s even more apparent now.

    2. The ABA has been a leftist organization since the Reagan years at least.

      1. And the reason I’ve never joined.

  22. The Canadian Bar Association supported Bill C-16 tabled by the Liberals. Bizarre.

    Jordan Peterson correctly took issue with it on the grounds of freedom of speech is threatened and that the government shouldn’t be compelling people to use pronouns not because he hates people (a ‘mean hateful white guy as some guy spewed) but that a) it’s a bad idea for speech and b) never mind the science behind it is dubious if not unsubstantiated.

    Plus, Trudeau pushed it which basically means it’s a terrible idea.

    1. I really wish Stephen Fry would have spoken up more during that “debate.”

      For those that wish to know what we are talking about, the link is here:

      I watched it while doing the dishes, worth the time.

      1. lol. I watched while preparing rapini, sausage and penne.

        It was amazing how one side was rational and reasoned and the other armed with nothing more than emotion and ad hominen. And that girl from the NYT. She writes for them? Yeesh.

  23. One aspect that doesn’t receive as much attention as it deserves is the nature of third person pronouns. We’re not talking about how a speaker uses second person pronouns (e.g. “you”) to directly address someone. Rather, we’re talking about how a speaker uses third person pronouns (e.g. “he”) when speaking to third parties about someone else, as opposed to speaking to the person to pronoun refers to.

    So when you regulate one’s ability to use third person pronouns, you’re regulating one’s ability to describe the world in whatever way is useful or appropriate to the speaker and the audience.

    If using “he” happens to be most useful when referring to an absent person who prefers “zhe,” it’s not at all clear to me why the absent person should have any interest at all in the pronouns being used, much less one strong enough to override the preferences and needs of others.

  24. By the way, my preferred third person pronouns just so happen to be I, me, my, mine, myself. I realize some also use them as first person pronouns, but it’s not like English hasn’t seen homonyms before.

    P.S. Get it right or I’ll try to take your livelihood.

  25. Many, including me, have argued that this rule, if adopted, would create an unconstitutional speech code for lawyers

    How could it be unconstitutional? If I understand correctly, the American Bar Association is a private organization, with plenty of influence but no legal authority whatsoever. So shouldn’t they be allowed to have a speech code for their own members? After all, members are free to leave the ABA and cheerfully ignore their Orwellian speech codes.

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