UCLA Law Prof. Eugene Volokh is usually a pretty restrained guy, but the First Amendment expert goes absolutely nuts when talking about a brazen and flagrantly unconstitutional attack on free speech by New York City’s social engineers.
Almost certainly unbeknownst to the average New Yorker – a demographic not known for overweening politeness (I know, I married one) – the New York City Commission on Human Rights is demanding that employers, landlords, professionals and “all businesses” (in Volokh’s reading) ask people their preferred gender pronoun from their first interaction.
The “legal guidance” in part:
a. Intentional or repeated refusal to use an individual’s preferred name, pronoun or title. For example, repeatedly calling a transgender woman “him” or “Mr.” after she has made clear which pronouns and title she uses …
Covered entities may avoid violations of the NYCHRL by creating a policy of asking everyone what their preferred gender pronoun is so that no individual is singled out for such questions and by updating their systems to allow all individuals to self-identify their names and genders. They should not limit the options for identification to male and female only.
The commission has the power to FINE these “covered entities” for violations, Volokh writes in The Washington Post:
So people can basically force us — on pain of massive legal liability — to say what they want us to say, whether or not we want to endorse the political message associated with that term, and whether or not we think it’s a lie. …
We have to call people “him” and “her” even if we believe that people’s genders are determined by their biological sex and not by their self-perceptions — perceptions that, by the way, can rapidly change, for those who are “gender-fluid” — and that using terms tied to self-perception is basically a lie.
This is even more outrageous than you’d think because the commission calls this “harassment,” he continues:
[H]arassment law requires employers and businesses to prevent harassment by co-workers and patrons and not just by themselves or their own employees; this is particularly well established for harassment by co-workers, but it has also been accepted for harassment by fellow patrons. So an employer or business that learns that its employees or patrons are “refus[ing] to use a transgender employee’s preferred” pronoun or title would have to threaten to fire or eject such people unless they comply with the City’s demands.
Volokh gets depressingly funny when laying out a possible scenario for what this idiotic guidance could require you to do – let’s just say wacky honorifics are involved – if you are unfortunate enough to be subject to these unaccountable arbiters of justice.
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