The New York City Commission on Human Rights (NYCCHR) confirmed to Heat Street on Thursday that it is currently investigating 31 cases of “gender identity discrimination” — alleged discrimination based on an individual’s gender identity, self-image, behavior, or expression — in housing, public accommodations, and employment. They can fine small businesses a crippling $250,000 – and up – for such an “offense.”
This comes two days after The Washington Post’s Eugene Volokh took issue with the constitutionality of a legal guidance the NYCCHR issued on Dec. 21, 2015, which defines “[u]nlawful gender-based discrimination” to include a wide range of offenses, including the use of a non-preferred pronoun or title.
The relevant portion of the guidance defines the following as a violation:
1. Failing To Use an Individual’s Preferred Name or Pronoun
The NYCHRL requires employers and covered entities to use an individual’s preferred name, pronoun and title (e.g., Ms./Mrs.) regardless of the individual’s sex assigned at birth, anatomy, gender, medical history, appearance, or the sex indicated on the individual’s identification.
Most individuals and many transgender people use female or male pronouns and titles. Some transgender and gender non-conforming people prefer to use pronouns other than he/him/his or she/her/hers, such as they/them/theirs or ze/hir. 10 Many transgender and gender non-conforming people choose to use a different name than the one they were given at birth.
There are currently no such words as ‘ze’ and ‘hir’ (both neologisms) in English. The English pronoun for neutral gender is the word ‘it’.
NYC has not yet announced whether it plans to sue the dictionary.
As an example of such alleged “discrimination”, the Commission’s guidance lists: “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.”
Other violations under the guidance include “Refusing To Allow Individuals To Utilize Single-Sex Facilities and Programs Consistent with Their Gender,” “Sex Stereotyping,” and “Imposing Different Uniforms or Grooming Standards Based on Sex or Gender.”
Offenses can be subject to a $125,000 fine — $250,000 if the offense is found to be “willful, wanton, or malicious.” Also, according to the guidance, these fines can be imposed on top of other levies “including, but not limited to, back and front pay, along with other compensatory and punitive damage.”
The Washington Post‘s Volokh, a First Amendment scholar, noted that the Commission’s guidance regarding pronouns and titles amounted to a form of forced speech. “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,” he wrote.
The Press Secretary at the New York City Commission on Human Rights, Seth Hoy, issued this statement in response to Heat Street‘s inquiries:
“The Commission’s legal guidance on gender identity and expression protections under the NYC Human Rights Law, released in December of 2015, addresses situations in which individuals intentionally and repeatedly target transgender and gender non-conforming people with this type of harassment.
Accidentally misusing a transgender person’s preferred pronoun is not a violation of the law and will not result in a fine. The Commission issued this guidance last year so that employers and individuals understand what the law says and to ensure that every transgender individual in New York City is treated with the respect and dignity they deserve.”
Eighteen of the 31 cases currently under investigation pre-date the December 2015 legal guidance, according to Mr. Hoy. Asked to elaborate on the nature of the violations being investigated in these 31 cases, Mr. Hoy declined, citing that these are “active investigations.”