Freedom of speech and gender identity
photo by Ted EytanThe right to free speech is the foundation upon which many of our other rights rely. Guaranteed by the federal government through the First Amendment of the U.S. constitution, each state has enshrined equal or greater protections in their individual constitutions. Although freedom from government limitations on speech is not absolute, exceptions are narrowly granted and highly disfavored. Governments also cannot “compel” speech, for example by requiring people to say the pledge of allegiance or salute the flag.
This protection has traditionally been bolstered by the American culture of free speech—though this cultural tradition has at times led to misconceptions about the scope of our actual legal protections, such as the mistaken belief that legal free speech protections apply to private entities.
Our reverence for free speech is now being challenged by emerging customs around the quasi-spiritual “gender identity” ideology, such as the concept of “preferred pronouns.” When a male person declares himself to be a woman (or vice versa), it is expected that all will immediately begin referring to him as such, as well as using “she” and “her” to describe him—even when he is not present. This is true even if he never medically or socially “transitions.”
Declining to follow this very new custom is increasingly treated as discriminatory or even hateful, and this view is being written into our civil rights laws in a way that dramatically impacts speech rights.
Most people think of nondiscrimination protections as the types of measures that prevent people from losing housing or jobs they were otherwise qualified for as a result of unfounded prejudice. In very limited circumstances, speech that is insulting or demeaning to someone else’s personal beliefs may be considered evidence of a discriminatory motive if connected to a potentially unlawful firing, or to a crime like an assault on a person. Conversely, speech that expresses disagreement with another person’s beliefs is not likely to be treated as evidence of unlawful discrimination.
Yet advocates for the gender identity movement have encouraged the view that it’s discriminatory not to speak and act at all times as though a person’s claimed gender identity was their real sex, and that this refusal to express the belief of the other person is legally actionable discrimination, all by itself.
People have been hit with disciplinary action or even lost their jobs, and have been banned from social media platforms for refusing to deny the reality of what they see and hear in front of them. The former practice is being challenged by public employees through the legal system, and as of this writing one such challenge is pending in a federal Circuit Court of Appeals, one level below the U.S. Supreme Court. This is only possible because the plaintiff’s employer was a public school, and must honor employee’s constitutional free speech rights. In contrast, most private employers in the U.S. can fire employees for nearly any reason beyond a few specific exceptions (such as union organizing, or due to a protected characteristic such as race or religion).
“Everywhere Bostock has been cited has generally been in service of the idea that a person’s declaration about their subjective sense of themselves compels objective affirmation by others”
Earlier this year, the Supreme Court took up a case called Harris Funeral Homes (jointly decided with another case called Bostock v. Clayton County). The plaintiff in this case was fired after he expressed his intent to begin complying with his employer’s female dress code instead of the male dress code. Such dress codes are lawful under Title VII, and the plaintiff was seeking an exception on the basis of his self-declared gender identity.
Not only did the Court rule in his favor, it further ruled that an employee is protected purely based on their stated belief that they identify as the opposite sex. As private employers are subject to very few restrictions on when they can terminate an employee, the impact of this is to essentially carve out a private sector free speech protection for a man who declares “I identify as a woman.” Meanwhile, women who say that a person’s sex is determined by biology can be (and are) subject to consequences including termination.
The Bostock decision has since been cited in opposition to single-sex bathrooms and locker rooms, and to female-only sports teams. In fact, everywhere Bostock has been cited has generally been in service of the idea that a person’s declaration about their subjective sense of themselves compels objective affirmation by others: that the individual must be treated as if they were the opposite sex, including in how they must be spoken about when they are not even present (in the form of “preferred pronouns”). In essence, they are arguing for the nullification of all sex-based rights and protections for women, including the removal of women’s ability to speak freely about the role of women and men in society.
New legislation and regulations limit free speech about gender identity
Gender identity speech restrictions are quietly taking hold for public employees in many jurisdictions. New York state now requires its (publicly employed) correction officers to use “preferred pronouns.” New York City actually characterizes “misgendering” as sexual harassment reportable under the Prison Rape Elimination Act. This policy has the added effect of falsely increasing statistics on sexual victimization against people who identify as transgender while incarcerated (and even giving the appearance of an increase in victimization over time, as this is a newer policy and the old data would not reflect this convention). Activists then use this data to bolster their case for mixed-sex prisons.
This is just one example in one state. There could be an entire post on gender identity and compelled speech in New York alone. Legislation and regulations in other states, cities, and school districts add to this vast network of policies that all combine to enforce linguistic compliance. Legislation such as the proposed Equality Act, if passed, would further implicate federal law, with the end result that free speech on every level would be suffocated.
The court system is abandoning neutrality in favor of a quasi-spiritual ideology
As people begin to challenge these policies - or if they interact with the court system for any other reason - they will encounter further obstacles in a court system that is increasingly adopting the use of “preferred pronouns,” and of referring to people as women, men, both, neither, or other, solely on the basis of their expressed wishes rather than material reality. While court officials as public employees are permitted to express a particular viewpoint, they cannot compel that viewpoint. A judge can call a male person a woman if they choose, but they cannot tell other people that they must do the same. Yet this type of compelled speech is increasingly happening under the guise of “civility.”
Two examples in recent months of this illegal practice both take place in the context of challenges to Title IX sex-segregated athletics. In Soule v. Connecticut Association of Schools, high school girl’s track runners sued after losing 15 titles to male athletes who had been permitted to compete on the girl’s team based on declared self-identification as female. The judge in that case ordered the plaintiffs to refer to the male usurpers as “female,” stating:
“This isn’t a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events.”
This is patently false. The athletes in question are in fact males who decided to run in girls’ track events. This is a key fact at issue, and the judge demonstrated alarming partiality in siding with the defendant’s theory of the case from the outset. The plaintiffs requested that the judge recuse himself, and he denied their motion. The order forbidding them from correctly identifying the male athletes as male athletes remains in place.
In Hecox v. Little, the district judge similarly warned against using accurate sex-based language, calling it “gratuitous,” “degrading,” “pure meanness,” “mentally devastating,” “humiliating,” and “invalidating.”
The judge openly acknowledged that he was compelling litigants to say things they believed to be false, saying:
“Personal preferences or beliefs and organizational perceptions or positions notwithstanding, the Court expects courtesy between all parties in this litigation.”
He added that the requirement to use female nouns and pronouns for the male plaintiff should not “be taken as a factual or legal finding.” This unpersuasive assurance offers little comfort to those who have been censored and censured. Not only have the Soule and Hecox judges imposed an unconstitutional limitation on freedom of speech and freedom of belief (as well as raised the specter of perjury), they have also hindered the ability of women and girls to argue effectively in favor of their sex-based rights before the courts. If the defendants can’t be referred to as male, how can the point be clearly made that research demonstrating the sporting advantage of male puberty ought to be applied to them? Or, where the point is made, the defense is handed the shield that this “degrading,” “invalidating,” “gratuitous” commentary can’t be said to even apply to these “girls.”
“Soule and Hecox judges imposed an unconstitutional limitation on freedom of speech and freedom of belief”
This has not yet been challenged by the litigants in Hecox (including the intervenors, who are represented by the same attorneys as the plaintiffs in Soule). Attorneys must balance the need to zealously advocate for their client’s interests with uncertainty about whether aggressively challenging these types of orders will help or harm that advocacy. They may be exercising justifiable caution after the experience with the judge in Soule just a few months earlier. It is clear that there is no “right” answer for whether and how a party should address this, given the level of ideological capture in our court system and the hyperbolic reactions to sex-based pronouns. (Fortunately, WoLF has not yet been ordered to comply with these constraints, and in our amicus brief we directly addressed this issue).
Such practices also have grave implications for victim’s rights, as we have begun to see in other jurisdictions. In the UK, an older woman giving testimony about a violent physical assault she experienced was repeatedly interrupted and admonished by the judge for not referring to her male attacker as “she”. The Judicial Equal Treatment Benchbook now requires this practice in all UK courtrooms.
The future is uncertain
Fortunately, not all courts are playing this game. In U.S. v. Varner, the 5th Circuit denied the request of a male pedophile to use female pronouns after he later “transitioned” to a woman. The court spoke bluntly against the practice of mandatory “preferred” pronouns, correctly finding that “no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” It further noted that such compelled speech would “raise delicate questions about judicial impartiality” and “convey its tacit approval of the litigant’s underlying legal position.” The court concluded by “declin[ing] to enlist the federal judiciary in this quixotic undertaking.”
“If judges do not use ‘preferred’ pronouns and further require all staff and litigants to use them, that they will be in violation of state judicial ethics rules.”
But gender identity evangelists continue to hammer away at free speech under the guise of civil rights. In response to Varner, the New York State Bar Association made the astonishing assertion that using sex-based pronouns is equivalent to a racial slur, and that if judges do not use “preferred” pronouns and further require all staff and litigants to use them, that they will be in violation of state judicial ethics rules.
There are powerful interests involved here, including the American Civil Liberties Union (ACLU), which has been the driver in several of these instances, arguing forcefully for the courts to compel ideological speech from their opponents. The ACLU Director of Transgender Justice recently declared that a book discussing the rapid rise of transgender identity in teenage girls was “dangerous”, further stating that “stopping the circulation of this book and these ideas is 100% a hill I will die on.”
The discussion of ideas is not in itself dangerous, nor is speaking openly about child safeguarding, medical experimentation, and bioethics. It is not dangerous to say that female people are a discrete class, that biology and physiology matter to our experiences in the world, or that fighting to protect the sex-based rights and civil liberties of women and girls is critical to our liberation.
And that is a hill we are willing to die on.