Columns, Constitutional Law, Free Speech

Policing Pronouns: How “Misgendering” is Becoming the New Battleground Over Discrimination

Below is my column in the Hill on growing conflicts over “misgendering” in the use of pronouns. Both governmental agencies and academic institutions are increasingly treating misgendering as a form of hate speech or discrimination. That is triggering major free speech fights in this county and abroad.

Here is the column:

This past week the American Civil Liberties Union honored the late Supreme Court Justice Ruth Bader Ginsburg on the one-year anniversary of her death — by rewriting her famous defense of a woman’s right to abortion to remove offensive language. The offensive language? References to women and female pronouns.

While Ginsburg herself likely would have made short work of such “woke” revisionism, the incident highlighted a critical crossroads reached in politics and academia in the treatment of “misgendering” as a form of hate speech or discrimination.

Across the country, universities are ramping up misgendering rules for faculty and students. The most recent is Point Park University in Pittsburgh, which notified students that its Office of Equity and Inclusion will enforce rules against misgendering, pronoun misuse and deadnaming for individuals who do not use their classmates’ preferred pronouns. The university sent an email to students that states “any individual who has been informed of another person’s gender identity, pronouns, or chosen name is expected to respect that individual.” Students were informed that using the wrong pronoun was a violation and “action could be taken.”

Many of us have no objection to using a student’s preferred pronouns. Indeed, many faculty members try to avoid using pronouns altogether in class, rather than look up a student’s designated pronoun. Confirming the right pronouns can be challenging in the middle of a fast-moving class. Students today identify from a growing list of gender identities including, but not limited to, genderfluid, third-gender, amalgagender, demigender, bi-gender, pansgender, and a-gender. Pronouns can include, but are not limited to: He/She, They/Them, Ze/Hir (Ze, hir, hir, hirs, hirself), Ze/Zir (Ze, zir, zir, zirs, ze), Spivak (Ey, em, eir, eirs, ey), Ve (Ve, ver, vis, vis, verself), and Xe (Xe, xem, xyr, xyrs, xe).

Pronouns are fast fading from common discourse under the threat of pronoun penalties. Cities, too, are enforcing misgendering rules; for example, the New York City Human Rights Law allows for fines if employers, landlords or professionals fail to use a preferred name, pronoun or title.

Yet some people have religious beliefs against following the new order and using such pronouns. As a result, there are serious free-speech and religious-freedom objections to mandatory usage rules.

We are seeing a new stage in the fight over pronouns, where usage is mandatory and misgendering is a sanctionable offense. In other countries, it can be a violation of the criminal code. In England, a woman, Kate Scottow, was arrested following a debate on twitter over transgender policy. A transgender activist charged Scottow with harassment and “deadnaming,” or using the prior name or gender of a transexual person.

It is not just religious conservatives objecting to misgendering and new identification rules. Some feminists have objected that the movement endangers feminist values and undermines advances for women. In Scotland, feminist activist Marion Millar was charged with “malicious communication” due to tweets criticizing gender self-identification. She has been labeled a “TERF” (trans-exclusionary radical feminist).

Will misgendering in the United States be treated as actual hate speech or discriminatory speech?

To protect students from misgendering, universities and agencies would have to compel speech. This already is being litigated in some lower courts. In Loudon County, Va., a school board is fighting the courts in its effort to fire teacher Byron “Tanner” Cross, who was suspended for speaking against gender policies in a public board meeting. Cross refused to use required pronouns and told the board: “It’s lying to a child, it’s abuse to a child, and it’s sinning against our God.” The courts, including the state supreme court, ruled for Cross, noting that he could keep his job, adhere to his faith and satisfy the policy by avoiding pronouns altogether.

Notably, the school’s rule extends to students themselves, who are required to use correct pronouns, and mandates punishment for those who “intentionally and persistently refuse to respect a student’s gender identity by using the wrong name and gender pronoun.” Religious families have said such a rule would require them to leave the public school system as a threshold exclusionary condition for public education.

In Ohio,  Shawnee State University Professor Nicholas Meriwether, won a major appeal before the United States Court of Appeals for the Sixth Circuit which reversed a lower court that initially upheld his punishment for using a student’s designated pronoun choices. The school had refused Meriwether’s suggested compromises to just use the last name of the complaining student or use chosen pronouns after adding a personal disclaimer on the syllabus.

The same objections are being heard in other areas. Recently, a California court ruled that misgendering patients is protected despite a landmark LGBTQ+ rights bill. The appellate court ruled that the 2017 law unconstitutionally restricted “freedom of speech” by classifying “willful and repeated” misgendering and deadnaming as a misdemeanor punishable by a fine of up to $2,500 or imprisonment of up to 180 days. The court stated that “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.”

Now, as shown by the ACLU, past pronoun offenses are being scrubbed away even for feminist icons like the “notorious” Ginsburg, for referring to the right of “women” to have abortions. Activists like Charlotte Clymer insisted that “trans men and non-binary folks need abortion access.” The result is deepening rather than closing the divide in our society.

It is possible to allow for the adoption of alternative pronouns and the recognition of different gender identities without seeking to compel others to do so. We need to find a place of common accommodation and respect in our society. Religious people, conservatives and “TERFs” also are part of the diversity that we should seek to protect. In the end, a degree of mutual understanding and tolerance could produce greater integration of all of these groups.

Justice Ginsburg herself may have said it best when she advised people to “fight for the things you care about, but do it in a way that will lead others to join you.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

77 thoughts on “Policing Pronouns: How “Misgendering” is Becoming the New Battleground Over Discrimination”

    1. Wally dump the PCness. One is either male or female. The x and y chromosomes determine it. That has been true innately, that is, until the insane over took the asylum.

      1. Until my tax dollars follow my school choice, the only choice should be based on what your chromosomes identify.

        1. Gosh, that’s so James Carvelle

          😀

          Drag a $100 bill through a trailer camp and there’s no telling what you will find.

          – James Carville

          On a serious note, I just returned from John Hopkins which is where I was located when I posted my humorous quip. I posted it because I worked with all female physicians and female nurses today, and not one of them asked any patients about pronouns. Not one. I think a lot of this pronoun stuff is pushed by a very small yet vocal minority. Read below for Original Sin.

          I have had a few Trans patients in clinic. I treat everyone the same: with respect, as children of God, like people who possess inherit dignity. You’d be surprised how few Trans go through the surgery. I honestly believe the majority of these cases are psychiatric in nature. If they are past 25 years of age, and have explored psychotherapy for a good while, then I can understand their decision. However, what we are seeing today is a fad, peer pressure and very broken children (up until age 25) because their parents are broken. The fruit does not fall far from the tree. Then again, I’m inclined to believe that all of us are broken. insert Original Sin and God’s Grace arguments here.

    2. “You, idiot, and thing” will be the new ‘pronouns’ by which I choose to address these weirdos. They can either like it, or not.

    3. I don’t think anyone is in a position to place demands on others as to what they wish to be called.

    4. I still call them Mentally Retarded just like everyone else called the before some people were hit in the head with the Woke Stupid Club.

      And I’m positive all our enemies around the world are laughing their azzes off at those type idiots that don’t know if they have an innie or outtie.

      Jesus, you people need another Booster Shot or 10 to finish you off.

      1. The enemies around the world are laughing harder at the time and energy being wasted by everyone else feeling obliged to cater to these trivial whims.

    5. “Don’t you think people should be called what they want to be called?”

      Yes — if it’s a child playing fantasy.

      “You’re a princess, and I’m the evil ogre.” — Go with it.

      “You’re Harry, and I’m Voldemort.” — Go with that, too.”

      “You [college student] pretend to be a ‘she’ with male genitalia.” — Call a psychiatrist.

  2. Misgendering? Some people apply biology to gender. XX female, XY male, and intersex chromosomal abnormalities. That’s it. The end of the genders. Others believe gender is a state of mind.

    In my opinion, the latter have confused performative behaviors with biology. You can perform as a female but biologically, you’re male, and vice versa. That’s just science.

    Punishing people for taking a scientific, common sense position on genders is abusive.

    A man is perfectly free to behave as a woman. It’s a free country. But when that man seeks to punish, or impoverish anyone who disagrees that he can become an actual woman, then that is not a free country. Tolerance goes both ways.

    My entire gender has been reduced to a state of mind. A man can claim to be a woman and gain access to women’s changing rooms, showers, battered women’s shelters, and sports divisions. Although sports requires low testosterone to compete, they are still doing so in the biologically male frame with its inherent advantages.

    Sports divisions and private women’s spaces were not created because of identity, or masculine or feminine behavior. They were created to allow physiologically disadvantaged female gender the chance to play sports amongst each other, and for safety.

    There was recently an incident where a woman complained to Korean Wi Spa staff that there was a man exposing his penis to women and girls in the women’s changing room. She was scolded for being transphobic. There were demonstrations and even a riot.

    It turns out the person in question was a registered sex offender with a history of exposing himself to women and children. He was arrested. Again.

    1. Karen, perfect. I thought we we supposed to ” follow the science”. And biology is a science. Except for a miniscule amount of cases, hermaphrodites for example, if you have the XX chromosome you are a female. XY you are a male. Those are your choices. XX, She/ Her. XY, He/Him. Screw this ” identify as” crap. I don’t care how you dress, with whom you have sex with, how many surgeries you have or home many hormone injections you get. But having to defend yourself civilly, or potentially criminally is absolutely ridiculous.
      My daughter is in her 30’s now. But if she was in HER locker room at school, and a male who “identifies” as a female was allowed in and exposed HIMSELF, HE would have a big problem. HIS parents would find how good their heath insurance coverage on HIM was.

  3. A happy compromise would be proof of scalpel. If he had his 🍆 removed surgically, then he becomes she.
    If she has her 🍒removed surgically then she becomes he.

    Put some, ahem, skin in the game otherwise, he is he and she is she.

    Follow the science! Amirite!?

    1. Follow the science! Amirite!?

      😉 Not really. The better compromise would be to not use pronouns at all. Just use their legal last name. It worked well in the military.

  4. I am an atheist, but even still, I don’t particularly care what you want to be called. I was raised to say sir, ma’am, Mr, Mrs, and Miss. If you are to all appearances a guy you’re a Mr, and vice versa if you appear to any reasonable person to be a woman, I don’t care what you’re wearing or what you want to be called. If you don’t like that it sounds like a personal problem to me and is not my concern.

  5. A country that can find nothing better to get upset about than pronouns or a virus with a 99.99% recovery rate is a country that has known peace and abundance for too long. Presumably this is why we are now entering such a terrifying and tumultuous phase, I hesitate to say “in our history” because that would imply that the country will survive long enough to be able to view current events as part of the historical record as opposed to the end of our world as we knew it. The only consolation to be taken from the scourge we are undergoing is that we deserve it. We have forgotten God, we have lost our humanity, all we think about is what we are going to stuff into our mouths next or watch on TV or buy, naturally on installment. I don’t like any of it but I understand.

  6. John “Dudley Do-Right” Durham, where are you in your investigation of the Obama Coup D’etat in America?
    _____________________________________________________________________________________

    “We are five days away from fundamentally transforming the United States of America.”

    – Barack Obama

    1. The Obama First African Expeditionary Invasion Force was forward deployed to Del Rio, Texas then released en masse to all points beyond and throughout America.

  7. We need a new topic. What is a Bitcoin? What is a Bitcoin minor? Does a minor or miner, dig?
    Is there radiation in a Bitcoin? Gold? Silver? Is there anything in a coin that can sell on some other market like a gold market?
    Are the people who buy Bitcoins idiots?

  8. One of the tactics used by a cult leader in mind and group control is to change language or create new terms in language. Will “they” attempt to change everything ever written in the English language? Good luck with Latin languages where every noun has a gender assignment. Is this why there is a connection of Wikimedia, Wikipedia to the Tides Foundation? Take a deeper look at the funding of large organizations and follow the money.

    This is not a few individuals here and there who are offended by being misaddressed. This is a systematic and coordinated effort. Who is directing it? What is their objective?

    Step back and look at the bigger picture.

  9. Hate is the cesspool of the left, so it is not surprising that the left will create new classes of hate whenever they wish. This time it is “misgendering”. Like Nazism, the left uses hate to dehumanize, and then destroy anything that gets in their way.

    1. From Nazis braying Jew privilege to neo-Nazis braying White privilege, and, of course, the “burden” and wicked solution to a purportedly hard problem.

      1. Privilege, another word created by the left to discriminate, dehumanize and eventually enslave or kill.

    2. We already have “you”, so the 2nd person pronoun is asexually covered. Still leaves the 3rd person in (whimsical) confusion.

  12. What the SJW are demanding through intimidation, is centuries old exercises of respect. Yet I am the person that is supposed to change my behavior.I’m all for reasonable accommodation, but the starts with those seeking accommodation to come with an attitude of respect, not demanding special entitlement

    1. Ah, yes, Liberty University, the paragon of virtue and morality. Seems Jerry Jr, the President, enjoyed watching his wife swim naked with the cabana boys at the 5 star resorts at which they charged Liberty their food and lodging. Junior can’t satisfy the missus anymore, but the young men in the hot tub are more than happy to do so, and she was even happier to let them. When word reached the self-righteous Liberty Board, they fired Junior, paying him $10 million for the pleasure.

  15. I wonder what would happen if a student said the identify as “Jesus Is My Savior”? “Identify as Jesus Is My Savior Bob Smith” and you better call me that every time or I’ll report you! It’s a brave new world, it time to play their game.

  16. Have Americans lost their minds to allow such insanity take root in our nation? Misgendering SERIOUSLY, the Chicoms are laughing their assets off!

  17. “Oh, wonder! How many goodly creatures are there here! How beauteous mankind is! O brave new world, that has such people in ‘t!”

  18. time to remove all gender based presences and designations!
    no more gender on gov documents, no more girl scholarships, women own business set asides, etc

    Instead of excuse me madam, just say excuse me

    Leftists want to break society…lets throw it back on them!

    No more Women health! Just GENERIC care!

    1. Opportunity—- it is time to launch a new university system, one that is devoid of insanity. Social media is brainwashing our children and a large population of adults. All “Offices of Diversity & Inclusion,” which are really departments filled with judgmental, “C-students” should be eliminated and resources should be reallocated to things that matter. Stand up administrators, stand up board members, stand up alumni, this is MADNESS!

      1. it is time to launch a new university system, one that is devoid of insanity.

        This author, and I, agree with you. Now where did I put that $5 billion…

        I recommend a third option: conservatives should abandon reform and build new colleges. Blueprints to build entirely new institutions do exist. Conservatives should focus on this endeavor rather than supporting the hiring of the lonely conservative at one institution.
        https://lawliberty.org/the-time-to-fund-new-universities-is-now/?utm_source=LAL+Updates&utm_campaign=ffe93e5645-LAL+Updates&utm_medium=email&utm_term=0_53ee3e1605-ffe93e5645-72413845

    1. Yes, I deal with this in a volunteer group I belong to. I refuse to call this female a male. Just because you want to believe the sky is green and trees are blue, does not mean I have help your psychological problem. These people need help not catering.

  20. Trey Gowdy did a speech at Liberty University and there are videos of it at YouTube…..called “Persuasion” that aligns with what Ginsburg had to say.

    I highly recommend that video and the advice that Gowdy offered to the Students about the need to persuade others to see your point of view and that insult and similar methods are only going to fail whereas persuasion can win others over.

    Some here could benefit from adopting that method to what they use currently.

    2. Ralph… Persuasion would work if these people really wanted harmony and compromise. But they don’t. This movement, as all movements on the left, is about power. In this case, power and gender narcissism. They have hijacked the legal system to enforce their power play.

    4. Persuasion? How can you persuade the left who drowns you out, chases you off campus, calls you racist if you don’t agree with them?

      1. Not all people on the left are ideologically possessed. There are some out there who are tired of the division, especially since it is acting as a nice legerdemain from other problems that affect us all, like data-mining and survelliance.

        1. “Not all people on the left are ideologically possessed.”

          Prairie, I assume you are correct, but I find it harder and harder to find such people. Can you name any Democrat in the Senate or House you feel meets your criteria? How about influential leftists that aren’t in politics? There, I know, there must be some. Can you name any?

          I’m not putting you on the spot. I keep thinking about what you said and try to find those people on the left not significantly ideologically possessed. Right now, Turley and Dershowitz come to mind, but the field is getting smaller.

          1. S. Meyer,
            I agree the field is rather small. And, unfortunately, our “leaders” are mostly not helping matters.

            People on the left or center-leftish who do not seem to be ideologically possessed: Bret Weinstein and Heather Heying come to mind. Tulsi Gabbard, Bill Maher, Douglas Murray, Jordan Peterson, and Russell Brand. I know a handful of regular people, too, who view this sort of stuff as deliberately divisive.

            1. Let me first ask, do you think Douglas Murray is on the left? I don’t think so. I’m not sure where Jordan Peterson stands, if he does. I think he is disliked by the left. Classical liberals can be confusing. Turley votes Democrat, but he has the respect of conservatives on this blog, not the left wingers. I note three of the names are British. The two names at Evergreen, I think have classical liberals tendencies and concerns over our basic freedoms.

              The left is running on empty and that is where leftist governments generally end, on empty.

              1. The governing spectrum runs from least to most government, from right to left. Liberalism is a philosophy of divergence. Classical liberalism is based on a narrowly defined set of principles that favor individual dignity and agency over a collective (e.g. democracy) and minority (e.g. dictatorship). American conservativism is a hybrid of classical liberalism and Christianity: pro-Life, Liberty, and the pursuit of Happiness under a Constitutional framework that affirms individual rights and limits government authority.

                1. n.n., I won’t disagree, but there is a wide spectrum in each category. A strict libertarian might feel one way while a libertarian that believes in the Constitution might feel differently. Classical liberals will differ from one another. Political positions are very fluid.

                  We can see how many on this blog from the left have little to no idea of what the different sides represent. They are leftists that don’t realize that they are essentially on a similar side to naziism, socialism, fascism, communism etc.

                  A simple test of where a person stands could include questions on property rights, the free-market, size of government, basic freedoms, Constitutions, etc.

              2. S. Meyer,
                I would say all are some shade of classical liberal.

                “Let me first ask, do you think Douglas Murray is on the left? I don’t think so. I’m not sure where Jordan Peterson stands, if he does.”

                Douglas Murray is a tad left of center, I think, because he is a British conservative. However, he is thoroughly a classical liberal. Same for Dr. Peterson. Both are traditionalists.

                Naomi Wolf has recently opened her eyes to some of this nonsense. Others who have spoken against at least some of the left’s nonsense: Jonathan Haidt, Matt Taibbi, Glenn Greenwald, Camille Paglia. I had high hopes for Conor Friedersdorf after Trump’s election (he seemed like he genuinely wanted to know what the heck had happened), but last I read, it seems he was still rather partisan.

            2. Prairie, I’ve read and spoken to Murray and I don’t think he is a Liberal either in England or in America. It is hard to classify many people because they can have views on both sides of the aisle.

              In the past I read about the views of Americans and noted that what we consider center isn’t center because the average American according to those I have read is right of center.

              None of that means much to me. I judge positions based on things like the belief in personal property, smaller government, Classical Liberal ideas and freedoms. Now-a-days it seems that anyone not tied to the left is said to be on the right.

              1. S. Meyer,

                Have you noticed the media commonly tags someone or some group as ‘far right’ but never says any person or group is ‘far left’?

                1. Young.

                  Yes. There are only two sides. The left according to those in charge, and the rest of the people. They can be on the left as well, like Dershowitz and Turley, but they are not considered to be on the left. If the left doesn’t like someone,-that person is on the right. If a leftist is also a Nazi that injures or kills someone he is known as a right-winger even though he supports left-wing policies.

                  The left has created a whole new series of dictionaries and encyclopedias that are meaningless.

              2. Meanwhile, in the penal colony formerly known as New South Wales, Australia, you have this:

                As for the 20% of the population that remains unvaccinated, life will be even worse than it is now. Berejiklian is quoted as saying, “I think today is a very disappointing day for those who aren’t vaccinated. I think they assumed when we hit 80 percent double dose they would have certain freedoms.” If so, they were severely mistaken.

                The unvaccinated will remain locked down in their homes with no non-cohabitating visitors. Travel will be restricted to only essential trips for food shopping or medical care. They will continue to be limited to being outdoors only a couple of hours per day and they are not to approach or speak to other people. Obviously, they will not be welcome at funerals or weddings or the soon-to-be-reopened swimming pools or beauty salons. They will effectively be held as prisoners in their own homes.
                https://thinkcivics.com/unvaxxed-australians-about-to-lose-freedoms/

                1. Think of how many people died trying to preserve freedom. Think of how many worthless Stupid people, that do nothing, are taking that freedom away.

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