New York’s “Misgendering” Law is Wrong, No Matter How You Feel About Transgenderism

Micah J. Fleck

[dropcap size=small]T[/dropcap]he Republic just published a very informative report on a new civil rights guideline that could end up with NYC citizens facing hefty fines for what is being called “misgendering.” The idea, as the original news story explains, is that calling a trans person the wrong pronoun or title is now seen as a civil rights violation.

As a very pro-LGBT individual (and someone who has gone out of my way to defend the transgender perspective in the past – even in this very publication), even I cannot defend this position. Mainly because I’m pro-trans for the same reason I’m also pro-freedom of speech: I’m first and foremost an adherent to the United States Constitution. As such, though I support the rights of the former, I must surrender to upholding the integrity and implementation of the latter. Freedom of speech, as outlined in the First Amendment of the U.S. Constitution, protects all speech, not just that which does not have the potential to offend.

A friend of mine who is trans recently shared this story with me when it first broke, and proudly proclaimed that this was yet one more reason why she was “proud” to be a New Yorker. While I am elated at her personal bravery and decision to finally live outwardly as the gender she always identified with internally, and while I will always cheer her on in her journey, I cannot stand beside a legal action that forces a personal viewpoint on someone else. Certainly not at the expense of someone else’s First Amendment rights. I made this distinction clear to my friend, who promptly responded with, “Well the story clearly says it would only apply to people who intentionally did the misgendering!” My response: “Well, how do you qualify that? Are we inside each other’s heads to know for certain someone’s intent?”

The answer, of course, is no. And after she wrestled with it for a time, my friend ultimately conceded that I was right. She’s still happy with the law, but now has “mixed feelings” about it. Mainly because, according to her, “The First Amendment doesn’t protect speech that could lead to violence.” All right, then.

Keep in mind, this woman attends a very good school and is spot-on about a lot of issues. Her education isn’t the problem, here; her personal connection to the issue at hand might very well be. But that is not my place to claim absolute certainty on.

I rather chalk this up to something I consider fairly similar in the issue of Ku Klux Klan rallies. In the town I hail from, there was once a period of a couple months that was full of Klansman sightings – the hooded morons were actually handing out fliers at traffic intersections and inviting people to attend their upcoming meeting to “hear the truth.” In theory, these meetings could incite a lot of angry, violent results, yet on their own, they’re still just meetings. Gatherings. Forums inviting outsiders to join a discussion using words alone. That is the epitome of a Constitutional right to free speech. Even if the speech itself is moronic (or even dangerous), the idea is to not persecute on words alone. When or if real violent action follows, then we enforce the laws we already have in place to prevent and punish such acts. My friend, as well meaning as she is, doesn’t grasp this, and apparently neither does New York.

As I said, I am more than supportive of trans rights, have debated on a public forum with fellow libertarians about why we must embrace transgender issues as our own, and you’ll never hear me say an unfair thing against an individual of trans experience for simply being trans – but wanting to have the secular law of the land validate your perspective by punishing others for not sharing it – intentionally or not – sets a dangerous precedent. One which no fan of true freedom should ever accept.

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