Free Speech

California Court Strikes Down Law That Criminalized Certain Uses of Non-Preferred Pronouns

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In Taking Offense v. California, decided yesterday by the California Court of Appeal, in an opinion by Justice Elena Duarte, joined by Justices Harry Hull and Ronald Robie, the court considered (among other things) the constitutionality of Cal. Health & Safety Code § 1439.51(a)(5) which provides, in part,

[I]t shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person's … gender identity[ or] gender expression …: Willfully and repeatedly fail to use a resident's preferred name or pronouns after being clearly informed of the preferred name or pronouns." …

The court concluded the pronoun portion of the law was a content-based speech restriction (it didn't discuss the name portion in detail):

Applying Reed v. Town of Gilbert (2015), the pronoun provision is content based on its face because it draws a distinction between what is and what is not permissible based on the content of what is said. If an employee's speech repeatedly and willfully misgenders [i.e., systematically misuses the preferred pronouns of] a long-term care facility resident, the speech is criminalized. If an employee's speech does not misgender a resident, or if the employee misgenders the resident only once or unintentionally, the speech is not criminalized. To determine whether an employee has violated the pronoun provision, an enforcement authority must analyze the content of the speech (McCullen v. Coakley (2014) [law is content based where it requires enforcing authority to analyze the content of the speech]) and determine whether the content of the speech runs afoul of the law. Moreover, the Legislature's purpose in enacting the law was to prohibit staff from willfully and repeatedly misgendering a resident due to the harassing, discriminatory, or insulting nature of that speech; in other words, its communicative effect….

[T]he Attorney General argues the law is content neutral because it does not dictate speech; employees remain free to avoid using the pronouns at issue entirely…. [But] "the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." For purposes of the First Amendment, there is no difference between a law compelling an employee to utter a resident's preferred pronoun and prohibiting an employee from uttering a pronoun the resident does not prefer….

[T]he Attorney General [also] contends the restriction on speech is content neutral because pronouns are merely stand-ins for nouns and are not ideological messages. But the Legislature understood the importance of pronouns' content and, thereby, their meaning, in this context, to the point that it passed a law criminalizing misgendering transgender residents of long-term care facilities.

We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person's expressed gender identity. But the First Amendment does not protect only speech that inoffensively and artfully articulates a person's point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person's gender identity may be different from the sex the person was assigned at birth….

The Attorney General … contends the captive audience doctrine should be considered among the categories of speech subject to a standard requiring less than strict scrutiny. To address that issue, we briefly describe the captive audience doctrine.

Generally, listeners exposed to offensive speech are expected to avoid the speech if they are not receptive thereto. But in limited circumstances, "when an audience has no reasonable way to escape hearing an unwelcome message, greater restrictions on a speaker's freedom of expression may be tolerated." "The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience. But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it."

In Frisby v. Schultz (1988), the high court recognized that the home is uniquely deserving of protections: " 'The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.' [Citation.] Our prior decisions have often remarked on the unique nature of the home, 'the last citadel of the tired, the weary, and the sick,' [citation] and have recognized that '[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.' "

In Madsen v. Women's Health Center, Inc. (1994), the court recognized the state's strong interest in residential privacy applied by analogy to medical privacy, recognizing the substantial privacy interest in "not only the psychological, but also the physical, well-being of the [hospital] patient held 'captive' by medical circumstance." (See also Hill v. Colorado (2000) [upholding a buffer zone around clinic entrances due to the "unique concerns that surround health care facilities," where those using the facilities "are often in particularly vulnerable physical and emotional conditions"].) The high court has observed: " 'Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family … need a restful, uncluttered, relaxing, and helpful atmosphere.' "

Long-term care facility residents are analogous to citizens in their homes. There is little doubt that many—if not all—residents who have expressed a pronoun preference are an unwilling audience for repeated and willful misgendering, if it should occur, and they have little, if any, ability to simply avoid harassing or discriminatory speech.

However, while long-term care facility residents are similar to other captive audience listeners, the speakers in this case are distinguishable from speakers in other instances where the captive audience doctrine has been applied. Taking Offense asserts that both residents and employees of long-term care facilities are "captive audiences," and therefore the doctrine should not be applied to lessen the scrutiny given to laws that restrict the content of employees' speech and to compel them to host a message with which they may not agree. While we disagree with the characterization of employees as "captive audiences" and see no support for that characterization in the relevant jurisprudence, we recognize we must consider the legitimate speech interests of employees, who, like residents, are not readily able or expected to go elsewhere to express their views. While the residents are in what amounts to their own home, the employees are in their own workplace. Given the First Amendment rights of employees in their workplace, we decline to rely on the captive audience doctrine here to apply less than strict scrutiny….

The court therefore concluded that the law was unconstitutional unless it was narrowly tailored to a compelling interest, and held that this test wasn't met here:

We agree with the Attorney General that the state has a compelling interest in eliminating discrimination on the basis of sex. The high court has recognized that discrimination on the basis of "sex" includes discrimination on the basis of sexual orientation or transgender status. Our [state] Supreme Court has also recognized that the state has a compelling interest "in ensuring full and equal access to medical treatment irrespective of sexual orientation." …

[But] it is not enough for the government to identify a compelling interest. The government must also show the statute furthers the compelling interest and is "narrowly tailored to that end." To satisfy the narrow tailoring requirement in the case of a content-based speech restriction, the government must show the law is the least restrictive alternative of achieving the government interest. Included within the "least restrictive alternative" inquiry are the related components that the law must advance the government interest, must not be overinclusive, meaning the law may not restrict speech that does not implicate the government interest, and may not be underinclusive, meaning it fails to restrict a significant amount of speech harming the government interest to the same degree as the restrict[ed] speech.

The burden is on the government to prove proposed alternatives will not be as effective as the challenged statute. "In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving [the Legislature's] goal, regardless of the restriction it imposes.

"The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to ensure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve [the Legislature's] legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives." …

[W]e conclude the pronoun provision—whether enforced through criminal or civil penalties—is overinclusive in that it restricts more speech than is necessary to achieve the government's compelling interest in eliminating discrimination, including harassment, on the basis of sex. Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering—provided there has been at least one prior instance—without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct. Using the workplace context as an analogy, the statute prohibits the kind of isolated remarks not sufficiently severe or pervasive to create an objectively hostile work environment. There is no requirement in the statute that the misgendering at issue here negatively affect any resident's access to care or course of treatment. Indeed, there is no requirement that the resident even be aware of the misgendering.

We recognize the Legislature's legitimate and laudable goal of rooting out discrimination against LGBT residents of long-term care facilities. As the Legislature recognized, many LGBT seniors are members of multiple underrepresented groups, making them "doubly marginalized," causing them to avoid accessing necessary care and services. When those seniors do attempt to access care, they are often subject to mistreatment and discrimination by the very staff designated to care for them. As evidenced by the Legislature's findings, discrimination and mistreatment against LGBT seniors continues to have a pernicious effect on the ability and willingness of those individuals to obtain long-term care.

But the Attorney General has not shown that criminalizing occasional, off-hand, or isolated instances of misgendering, that need not occur in the resident's presence and need not have a harassing or discriminatory effect on the resident's treatment or access to care, is necessary to advance that goal….

Justice Robie joined the opinion, but added a concurrence:

I concur fully in the majority opinion but write separately to express further thoughts on the use of pronouns. One's name or the pronoun that represents that name is the most personal expression of one's self. To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel. The impact of using inappropriate pronouns is even more offensive and hurtful when it occurs in an environment where one cannot choose the persons with whom one associates.

The Legislature recognized this fact (as recounted in the opinion) but unfortunately chose a prophylactic remedy to eliminate misuse of pronouns that just went too far. Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation….

I think a law framed in "hostile environment harassment" terms would pose its own First Amendment problems (see here for my discussion, based on several of my articles, of the closely related issue as to speech that offends coworkers). Still, this opinion struck me as significant and worth noting.

NEXT: Today in Supreme Court History: July 17, 1862

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  1. The First Amendment absolutely protects your right to act like a douchebag.

    And that is absolutely as it should be. The government does not proscribe orthodoxy in America.

    1. “The First Amendment absolutely protects your right to act like a douchebag.”

      That’s not true. The defamation defendant acts as a douchebag, the person who creates a hostile work environment with epithets acts as a douchebag, etc What’s going on here is simply the judiciary deciding that the interests of not being harmed by being misgendered is not as important as the interests involved supra.

      1. No. The judiciary is applying settled doctrine.

        You actually can’t selectively ban defamation based on viewpoint either.

        And a hostile environment requires severe or pervasive conduct. Misgendering is rarely/never going to qualify.

      2. I object to the word misgendering. The fake pronoun is the real musgendering. It is the denial of the reality of the chromosomal genomic expressionin every human cell of the human body. The left is imposing denial by force. It is catering to a false belief. It is not a delusion since the person understandsit is a false belief. It is a tantrum followed by bullying.

    2. Didn’t you misgender Courtney Stodden on Twitter recently?

      1. No I didn’t. I said I didn’t really buy that they had transitioned.

        The whole nonbinary thing is VERY different and much more questionable than binary transition. If a person assigned male at birth presents as a girl or woman, the pronouns follow as a matter of common courtesy. But “nonbinary” is meaningless. People don’t even change the way they present and want to claim they are oppressed and trans. We should still try to use their preferred pronouns, but that category is a LOT more tenuous.

        1. If a person assigned male at birth presents as a girl or woman, the pronouns follow as a matter of common courtesy.

          No, they don’t. Common courtesy may argue for humoring the person’s preference, in some circumstances. Such as, perhaps, when referring to the person in their presence, if and when the person concerned is {him/her}self suitably courteous.

          Outside the person’s presence, it’s difficult to see how humoring the person’s preference could be required by courtesy – though in the case of affection we might humor all sorts of things.

          And in the person’s presence, any kind of demand that you humor the preference will send the duties of common courtesy packing.

        2. If a person assigned male at birth presents as a girl or woman, the pronouns follow as a matter of common courtesy.

          Now go back five years ago, would any of you have had even the vaguest idea of what the hell this sentence was talking about?

          It’s simply not reasonable to have everyone consult the latest advice on gender neutral pronouns and cross reference that against each person they interact with’s preferences.

          People with a certain ideology are setting up a world where you are always wrong – where you need to stay constantly aware of a complex, ever-shifting set of codes, rules, norms, and standards to demonstrate that you are “on the right side of history”. It’s a dangerous place to be.

        3. “No I didn’t. I said I didn’t really buy that they had transitioned.”

          IIRC You kept referring to her as “she” when you knew she preferred “they”. That’s the behavior that this bill outlawed, and that you criticized.

          Now, you certainly have some interesting thoughts about the merits of binary vs. non-binary transitions, but the whole point is that you’re not supposed to apply your own reasoning and require people like Courtney Stodden to debate their existence.

          The principle that you appear frequently defend here is that you are supposed to accept someone’s gender self-identification whether you agree with it or not.

          Now, I don’t agree with that, but that’s the idea.

          1. This entire subject has nothing to do with anyone’s “existence”. It’s an issue of courtesy. The activists who catastrophize it are ridiculous.

  2. I didn’t see anything precluding being fired….

    1. It’s pretty damned hard to fire civil service employees for serious matters; it would probably be impossible for using the wrong pronouns.

      Oh wait, you meant private companies, to whom the First Amendment doesn’t apply?

    2. That would be great. There is no shortage of jobs paying the same or more with less stress, and less exposure to nasty people. Let the families take care of these people if they are going to fire staff for refusing to go along with the denial of reality.

      Hi, Queenie. You do not get to define me. Stay in your lane. I identify as rich. I expect everyone to respect my identity by sending me money, so it can be fulfilled.

  3. I think to hold this law to residents is wrong, but employees I think is fine. They’re only ‘captive audiences’ in the sense of ‘I want to work in a profession but not follow its standards, so I’m captive to the standards!’

    1. Employees have First Amendment rights under Pickering

      1. Didn’t know that, I’ll go look it up. Thanks.

        1. Eugene explained this doctrine ten years ago. As TwelveInch pointed out, it doesn’t apply in this case because the state is acting as sovereign, not employer.

    2. And here the government is acting as sovereign, not as employer.

  4. I figure at this point everyone will greeted as “Hey You” and eventually there were will be those who claim they are more than one

    If you want me to address you by a pronoun that is not obvious please wear a sign, then I know better than to even engage you in conversation

    1. I learnt how to do it from the series Myst, which talks to the player constantly and never once gives any indication as to their identity.
      Greetings my friend.

    2. I identify as a dragon and a demigod.

      Bow down and bask in my glory. 🙂

    3. Same here. I have enough trouble remembering which nicknames to not use with certain people. I’ll be darned if I’m going to put any effort into learning some non-obvious personal pronouns, especially when people change them at will.

    4. I figure at this point everyone will greeted as “Hey You” ……If you want me to address you by a pronoun that is not obvious please wear a sign..

      In English, the only gendered pronouns are third person singular. Hence you never use a gendered pronoun to “address” someone. You use a gendered pronoun to refer to them, either in, or out, of their presence. In the latter case, a sign will not help you.

      1. That’s a good point.

        Still we do often refer to people, in their presence, using the third person singular.

        “What did she say?”

        “What do you think of his idea?”

        I’m with Dilan here. Dumb law, but c’mon people, show some courtesy. When I was young, decades ago, I was taught that it is just common courtesy to refer to people by the name they prefer. If Richard asks to be called “Richard,” you don’t call him Dick, or Rick, or Richie, or whatever.

        Seems to generalize to gender.

        1. Let’s just go back 100 years and use the person’ last name. Or “comrade.” That would also be acceptable.

          1. I’ll go for the last name idea.

            When I was in college, less than 100 years ago, the teachers addressed the students as Mr. and Miss so-and-so.

            I guess the titles would raise issues, but we could drop them, or just use “Student.”

            “Student Nico, would you please go the board and present your solution to problem number 2?”

            Am I dating myself?

        2. “Dumb law, but c’mon people, show some courtesy.”

          No.

          I am sick of being told every new demand from the left is just “courtesy”. I’m not playing that game anymore, haven’t been playing it for years now.

      2. Mr. Lee or is it Ms. Lee?
        Perhaps you are omitting the primary form of formal address.
        Unless you propose some gender-neutral honorific that isn’t case-specific (ie: doctor, officer, professor, etc), gendered language is absolutely necessary for manners.

        Also, let us not forget that the pronoun limitations aren’t limited to the actual English pronouns (he/she/they). This legally mandates nonsense words as well xir, xre, and literally anything else the most frustrating of jerks demands.

        1. Mr, Mrs, Miss, Ms, Dr, Prof etc are not pronouns, they are contracted nouns used as honorifics. But I agree, they are used to address people and some are gendered.

          As with folk who advertise “their” pronouns, people often offer their preferred “honorific” on their business card, but interestingly, and contra pronouns, if someone offers themself to the public as “Dr Smith”, or “Prof Smith”, or “Lord Smith”, then it is not thought to be discourteous to point out (if it is the case) that Smith is not a doctor, professor or lord, and to address him simply as “Mr Smith” – or even as “that old fraud Smith.”

  5. It is hard to imagine criminalizing someone’s speech and having to have a court explain to you why that is not merely unconstitutional but a greater danger to liberty than the thing the law is meant to prevent.

    1. That wouldn’t be hard, considering that the thing the law is meant to prevent is no danger to liberty at all. Is itself an element of liberty, actually.

  6. We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person’s expressed gender identity.

    Which makes one wonder what would be the “artful” way to do this.

    “Ah, that Governor Abrams – she’s somehow deluded herself into thinking she’s the Governor” – well, perhaps it’s artful, but it kinda lacks oompf if it starts by conceding, as a courtesy, the status that the assertion denies.

    And “ideological disagreement with another person’s expressed gender identity” misstates the nature of the disagreement, which is linguistic and factual, not ideological. As a matter of linguistics, people use the third person singular pronouns to refer to the referent’s sex, and always have done, a person’s gender being a linguistically recent invention of doubtful meaning to most speakers.
    And the factual bit is that the speaker’s choice of pronoun correctly references the referent’s sex, while the referent’s choice does not.

    1. Perhaps third-person singular pronouns historically referred to biological sex because only fairly recently have we concluded the legitimacy of gender identity differing from sex. And perhaps we should be using those pronouns to refer to gender identity going forward.

      1. only fairly recently have we concluded the legitimacy of gender identity differing from sex

        We who we ? I’m perfectly willing to entertain the possibility, but I’m still waiting for some coherent, consistent, non-circular definitions of “gender” and “gender identity” before I conclude anything very much about either.

        And perhaps we should be using those pronouns to refer to gender identity going forward.

        Well maybe. But as a user of third person pronouns, I’m more interested in distinguishing sex, than “gender identity.”

        Which is not to say that “gender identity” isn’t an interesting subject, albeit one which could benefit from more science and less politics.

        1. Of course the legitimacy of gender identity differing from sex remains a controversial matter. Which means the disagreement is ideological, not linguistic or factual.

          1. Que ?

            I appreciate that, at the time of Galileo, the Copernican system was controversial, but that doesn’t mean that the disagreement between Galileo and the Inquisition was ideological. One side asserted that “it moves” and the other side denied it, as claims of fact, not of value.

            And ultimately the two sides reached agreement as to the facts, not by ideological accommodation.

            1. You claimed “the factual bit is that the speaker’s choice of pronoun correctly references the referent’s sex, while the referent’s choice does not.” I am not following why it is factually correct for the pronoun to refer to sex rather than gender identity.

              1. Understood. The factual bit is, as I said, “…that the speaker’s choice of pronoun correctly references the referent’s sex, while the referent’s choice does not.”

                The linguistic bit is that normal usage is to use pronouns to refer to the referent’s sex, most people having only the haziest notion of what gender might be. And therefore an alert listener would normally assume that the referent’s sex is being identified.

                Of course there is great effort to change that usage, and there may be some pockets of society in which it is now common to use pronouns to refer to the referent’s gender. Consequently if one moves in such a milieu one might retune to that usage.

                Ultimately, of course, if the speaker’s usage is wildly eccentric, it may be that no one will understand him.

                But there is no current misunderstanding when a speaker uses “him” to refer to a “trans woman”. The speaker is clearly referring to sex. If the “trans woman” or a passer by takes offense at this, “she” is not misunderstanding, “she” is taking offense at the speaker’s choice to refer to sex, when “she” would prefer the reference to be to gender.

              2. the speaker’s choice of pronoun correctly references the referent’s sex, while the referent’s choice does not.

                You did not explain why this is a statement of fact rather than opinion (note the emphasis on “correctly”).

                1. 1. The speaker, whose intention is to reference the referent’s sex, references it correctly. Correctly is a reference to the correctness or incorrectness of the sex identification, that the speaker intends to refer to. Not a reference to the correctness of the linguistic usage (see 2 below.)

                  Of course, given that the speaker generally won’t be doing a full medical examination, and will be going on outward clues, the speaker’s identification of sex will only be “correct” most of the time. But that the speaker intends to refer to sex is determined by whether he is inclined to change his identification if and when the error is pointed out. Thus the bar scene in Crocodile Dundee with “Gwendolyn.”

                  2. Whether the speaker’s usage – using sex, rather than gender, as the determinant of the distinction between he and she, etc, – is correct, is a linguistic matter. Though it’s much more complicated than sex identification.

                  If the speaker is using a minority usage, even a small minority usage, it’s pretty hard to argue that his usage is incorrect, since he’s using it, and there’s a body of listeners who understand him correctly. In this pronoun case, of course, his usage is very much a majority usage. But for the same reasons as noted above, we cannot say that the minority of English speakers who currently use she, he etc to refer to gender, rather than sex, are “incorrect”, just because they are a minority. (Though, as mentioned above, we can ask them what they mean by “gender”.)

                  In that sense a speaker’s usage is usually, but not always, going to be “correct”, because there are fewer ways of being “incorrect.” But “correct” usage is very much more a matter of opinion that “correct” identification of sex.

                  1. I don’t agree that what the pronoun refers to is primarily a linguistic issue in the context of this debate. It’s primarily an ideological issue on what the usage ought to refer to. What the current majority usage is besides the point. Ditto on the fact of what the speaker intends (it’s similarly besides the point).

                    1. I agree that there is a debate – when permitted – as to what the usage ought to be. You might reasonably describe that as, partly, an ideological debate. But it is a debate in which very few pronoun users are engaged.

                      But I don’t think the fact that there may be a debate alters what the pronoun, as a matter of linguistics, refers to. That is the decision of the speaker. And unless the speaker is very eccentric, his usage is what it is, not what some other people think it ought to be . Most pronoun users are just bumbling on, using pronouns as they have always used them.

                      I agree that what the majority usage is, or what a particular speaker’s usage is, is not the same thing as the debating question as to what the usage ought to be. But I don’t agree that what current usage is, is beside the point, when considering what usage ought to be.

                      If some folk would like Americans to stop speaking English and start speaking German instead, I should have thought that it was very much on point, that that would put a lot of people who currently speak English, and don’t speak German, to a great deal of trouble.
                      Inertia is a perfectly respectable, non ideological, argument in the “ought” debate.

      2. “We” have concluded nothing of the sort. Some of us have resolved to impose that upon others of us.

  7. One’s name or the pronoun that represents that name is the most personal expression of one’s self. To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel.

    This is, of course, nonsense. Third person pronouns – the only gendered ones – are the pronouns other people use when talking about us, most of the time when we’re not even present to hear them.

    Mostly the pronouns that we get to use, or hear, about ourself, are I, me, you etc. These are hardly deep expressions of self, since they are common to everybody.

    The third person pronouns do distinguish half the population from the other half, but there are lots of other distinguishing words that are a lot more rude, insulting and cruel that could be used – like about half the adjectives, and not a few nouns.

    My adjectives btw are “good-looking”, “wise”, “honest” and “kind.” And y’all don’t get to pick anything that contradicts them.

    1. Again, you are forgetting Mr/Ms

      1. No, I am remembering that they are not pronouns.

  8. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth….

    Nope. It conveys that third person pronouns are used to refer to a third person by their sex.

    What “gender identity” might be, whether and how it may be different from the sex the doctors identify at birth, and how often the doctors make errors in their identification that are later spotted are all fascinating questions; precisely none of which enter into the heads of ordinary speakers of English when they use a third person singular pronoun.

    1. One could just use they, their and them and be done with it. I hate the ungrammatical nature of this suggestion, but anyone who objects to 3rd peron plural is being an ideological jerk.

    2. A large part of the problem is this “assigned” at birth nonsense.

      With the exception of a tiny minority born with ambiguous anatomy, sex isn’t ‘assigned’ at birth at all, it is merely observed.

      1. Actually, Brett, it is observed and assigned (or if you prefer recorded)

        1. Yes, I would definitely prefer “recorded”. The people pushing this nonsense didn’t pick “assigned” for no reason. It does NOT have the same meaning as “recorded”. It carries the implication of a discretionary, perhaps even arbitrary, choice.

          It’s just the usual effort to smuggle their premises in via language, the sort of thing Orwell was warning of decades ago.

          1. I agree that “assigned” has a sense of arbitrariness

            https://www.dictionary.com/browse/assign

            it’s noteworthy that all four meanings listed involve mere authority as the basis of the assignment. It’s true that the doctor has authority, but it is not at all mere, it is technical, knowledgeable authority.

            If a touchdown is scored after a review, if we said the officials “assigned” a touchdown, the opposing fans would get a bit peeved.

            I also agree that the choice of assigned” was almost certainly an propaganda choice.

            I prefer “identified” to “observed”. Doctors observe the external phenotype and then, using all that medical knowledge, identify the sex. They usually get it right, because the external phenotype is an very good proxy for the actual sex. But it’s not a perfect proxy, so sometimes they get it wrong.

            And since we’re familiar with wrong or mis- identifications, it seems to me that identify describes it best. It’s an expert identification based on features observed, which is, and is acknowledged to be, open to error.

            What it isn’t is an authority figure arbitrarily placing you in a category on a whim.

  9. John McWhorter’s latest book “Nine Nasty Words: English in the Gutter: Then, Now, and Forever” points out that the pronoun table of our youth has expanded. As a result, if asked, I will report my pronouns as “his ass”/“his ass”.

  10. Everyone is overlooking the vastly more important issue –
    Which is the correct mental illness diagnosis and the best mental health treatment for the mentally ill.

    Gender dysphoria has all the hallmarks of fad / de jure diagnosis. The mental health profession has a long and sordid history of pseudo diagnosis and treatment of the mentally ill.

    Seriously how many of the “gender Dysphoria ” really have a biological conflict with their bodies – biological conflict – not mental conflict with their bodies which gender transformation will actually cure.

    1. This is a serious issue. I have a cousin who has a genetic disorder that causes a person to have extra chromosomes, multiple X-chromosomes AND a Y-Chromosome. Physically my cousin has male anatomy, and he has chosen to live as a male and is okay with that. But this biological issue should not be confused with a psychological one. (Though an argument could be made that it is a psychological issue stemming from a biological anomaly…)

      HOWEVER, this issue has nothing to do with the criminalization of speech. Whether the issue is psychological or biological, it does not entitle them to use force to cause others to speak the way they wish them to speak.

  11. A boorish and backward person in this context should not be prosecuted. That person should be fired, shunned by decent citizens, and — in the natural course — replaced by a better person in our society, however.

    1. That seems rather excessive to do to somebody just because they’re a guy insisting on being referred to as ‘her’. I wouldn’t say we should humor such individuals, but, fire them? That’s a bit much.

      1. Is that the conservatism talking, the autism talking, or both?

        1. That would be the sense of humor: You neglected to identify who you were accusing of being boorish.

          Not that anyone actually cares who you think is boorish and backwards, of course.

        2. Funny that you think a person who uses the biologically correct though not preferred pronoun should be shunned and removed from society, but you find it okay to mock autistic people and use the disorder as an insult. Classy.

          1. “Classy” is *definitely* not Artie’s demonstrated preference.

  12. “a person’s gender identity may be different from the sex the person was assigned at birth…”

    Sex is not ‘assigned at birth.’ That’s trans activist propaganda language. Metaphorically, one might say that an embryo is ‘assigned’ at sex at conception. But the sex of the embryo and fetus is determined by development, long before birth.

  13. Again the Government trying to use force to fix a problem that the Free Market would fix better. This isn’t an issue for legislature. Let the employer set employee standards. “If you wish to keep your job here, you will use the transgendered patients’ preferred pronoun.” Transgendered patients are not captive audiences, because they have the right and the ability to choose a long-term care facility that enforces such a policy. The employee is not a captive to that rule because they are free to go and seek a job in a facility that does NOT enforce such a policy. No government, no force, just people choosing their associations…It’s really not that hard…

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