Introduction
Our names and pronouns are personal and powerful. They reflect our identities and provide a vehicle for self-definition.1 Using someone’s name and pronouns is an act of recognition.2 Conversely, deliberate misgendering, or the intentional “assignment of a gender with which a party does not identify,” is an act of hostility.3
To protect people from discrimination on the basis of gender, many states have enacted antidiscrimination laws—some of which make intentional and repetitious misgendering unlawful.4 While these laws have a lot of promise, they ultimately fall short of providing perfect protections.5 These antidiscrimination laws, and their authors, imagine that discrimination is a product of aberrant perpetrators reacting to arbitrary hatred, rather than of a system marked by racism, classism, ableism, and transphobia.6 Laws informed by this bad apple approach to antidiscrimination often enumerate particular acts that constitute unlawful discrimination and outline the appropriate punishments.7 Not only does this approach ignore the everyday inequities of our legal system and legitimize structures that cause the most harm to communities that these laws purportedly protected, but it also runs up against a powerful legal structure: the First Amendment’s protection of speech.8
Modern free speech jurisprudence is marked by judicial line drawing and value judgements.9 Unlike other areas of constitutional law, history and founding era intent have little bearing on current understandings of the First Amendment’s protection of speech, as contemporary free speech claims implicate questions beyond the framers’ foundational commitment to democracy.10 Questions of what kinds of speech (or actions) are afforded First Amendment protections, and to what degree, require contemporary Supreme Court Justices to make value judgments and draw lines.11 These delineations are essentially arbitrary.12 As the modern Supreme Court is marked by an absolutist,13 neoliberal,14 anti-classification15 approach to protecting liberties, it is no surprise that contemporary judicial line drawing has created a system that values the individual’s right to express a viewpoint, no matter how offensive, above all else.16
With increasing frequency, conservative opponents of antidiscrimination laws that prohibit deliberate misgendering use the First Amendment to challenge these laws, arguing that they encroach on a constitutionally protected right to free speech.17 In particular, the asserted free speech liberty is the right to deliberately misgender others as an expression of an (offensive) viewpoint.18 The Court’s current approach to free speech claims not only creates a pathway for these claimants, but also arms them with an effective sword, as invocation of the First Amendment’s free speech protections triggers heightened judicial scrutiny.19
This Note uses the recent case Taking Offense v. State of California to illustrate what happens when the prevailing approaches to free speech jurisprudence and antidiscrimination laws collide.20 In Taking Offense, a California Appellate Court struck down the “pronoun provision” of California’s LGBT Long-Term Care Facility Residents’ Bill of Rights, which made it unlawful for staff of long-term care facilities to repeatedly and willfully misgender trans residents.21 Taking Offense, a group described as comprising at least one California taxpayer, challenged the provision in court.22 The California court agreed with Taking Offense that the pronoun provision constituted an unconstitutional restriction of speech and struck down the provision.23
Part I of this Note starts by outlining the Supreme Court’s protection of offensive viewpoints and then discusses government regulation of speech that does not necessarily implicate the First Amendment, including antidiscrimination laws that prohibit particular discriminatory conduct.24 Part I then introduces the antidiscrimination law challenged on free speech grounds in Taking Offense, as well as the outcome on appeal.25
Part II addresses the limitations of the legal structures discussed in Part I. Part II then dives into Taking Offense more deeply, probing how the legal structures introduced in Part I—and their respective limitations—interact with each other in real time.26 Part II explores the problems that arise when claimants invoke the First Amendment to challenge antidiscrimination laws prohibiting deliberate misgendering and concludes that the First Amendment does not protect the right to deliberately misgender anyone.27
Finally, Part III suggests that courts adjudicating free speech challenges to laws prohibiting deliberate misgendering should construe the challenged laws as regulating conduct, not speech.28
I. Background
A. Modern Free Speech Jurisprudence
1. The Right to Offend
A central feature of free speech methodology is the distinction between content-based and content-neutral regulations of speech.29 Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea expressed.30 A law is considered content-based—and must meet strict scrutiny—if it restricts either subject matter or viewpoint.31 The requirement of subject-matter neutrality bars the government from regulating speech based on the topic of speech.32 The requirement of viewpoint neutrality bars the government from regulating speech on the basis of the ideology of a message.33
Laws that restrict speech according to the idea or message expressed are subject to the most rigorous judicial review.34 That is, content-based regulations are presumptively invalid and trigger strict scrutiny.35 To survive strict scrutiny, the government bears the burden of persuading a court that the regulation is necessary to achieve a compelling government interest.36 In other words, the government must persuade a reviewing court that a truly vital interest is served by the regulation in question and that the regulation is the most narrowly drawn means of achieving that end such that no less discriminatory alternatives exist.37
On the other hand, laws that restrict speech but are content-neutral are subject to intermediate scrutiny.38 To survive intermediate scrutiny, the government bears the burden of persuading a reviewing court that the challenged law is substantially related to an important government interest.39 The result of this jurisprudential scheme is that once the First Amendment is invoked and a reviewing court proceeds under a First Amendment free speech analysis, a challenged law is necessarily subject to heightened scrutiny.40
The Supreme Court applied the distinction between content-neutral and content-based regulations of speech in Reed v. Town of Gilbert.41 The Reed Court considered First and Fourteenth Amendment challenges to the Town of Gilbert’s sign code.42 The challenged code distinguished different categories of signs and placed varying levels of restrictions on each category.43 Signs were assigned a category “based on the type of information [each sign] convey[ed].”44 The code treated “Ideological Signs”45 most favorably, allowing such signs to be up to twenty square feet and be displayed with no time limit.46 In contrast, “Temporary Directional Signs Relating to a Qualifying Event”47 were treated least favorably and faced restrictive limitations on size and display time.48
The Court found that the challenged code was unconstitutional, as it was facially content-based and failed strict scrutiny.49 The Court explained that, if a law applies to a particular speech because of the message expressed, the government’s regulation of speech is content-based.50 In Reed, the challenged code distinguished between categories of signs based solely on the messages that the signs conveyed.51 Thus, the Reed Court applied strict scrutiny and reasoned that, even if the Town’s proffered interests were taken as sufficiently compelling, the code’s attempted regulation of speech was “hopelessly underinclusive” and thus failed to satisfy the narrowly tailored standard.52
The Court has also held that, while all content-based speech regulations are subject to strict scrutiny, laws regulating speech on the basis of viewpoint draw the most exacting scrutiny and are presumptively unconstitutional—a reflection of the high value placed on the individual’s unfettered right to express their viewpoint.53
In Matal v. Tam, the Supreme Court stressed that the requirement of viewpoint neutrality extends to speech that is offensive.54 Justice Alito, writing for the majority, announced the “bedrock First Amendment principle” that “[s]peech may not be banned on the ground that it expresses ideas that offend.”55 In Matal, the Court considered a First Amendment challenge to the Lanham Act’s “disparagement clause,” which prohibited the registration of trademarks that disparaged “persons, living or dead, institutions, beliefs, or national symbols.”56 The Matal Court held that the disparagement clause constituted unconstitutional viewpoint discrimination,57 finding that the clause effectively prohibited the registration of trademarks that offend any person or group.58 The Matal Court explained that “[g]iving offense is a viewpoint,” signaling that the First Amendment fiercely protects the right to offend.59
In sum, modern free speech jurisprudence fiercely protects the expression of viewpoints—including “giving offense.” As explored in detail below, this protection lays a path for claimants to allege a constitutionally protected right to offend.60 With increasing frequency, these claims are brought to challenge antidiscrimination laws protecting people from discrimination and harassment on the basis of gender identity.61
2. The Marketplace Metaphor
Modern free speech jurisprudence is marked by judicial line drawing that places the highest value on the individual’s right to express their viewpoint, no matter how offensive.62 While the First Amendment forcefully protects free speech, the Supreme Court has never accepted that the First Amendment is an absolute bar on government regulation of speech.63 Thus, in analyzing First Amendment free speech claims, judges must consider what expression is worthy of constitutional protection and to what degree.64 Unlike other areas of constitutional law, considerations of the Amendment’s drafting history and Framers’ intent do little to guide judges who parse contemporary free speech issues.65 Without history to lean on, contemporary Justices must make value judgments to delineate what exactly is protected speech under the First Amendment.66
To contextualize judicial line drawing and value judgments in free speech analyses, it is useful to consider the central goals that the First Amendment’s protection of free speech is understood to further: democracy, individual autonomy, tolerance, and the search for truth.67 This Note will focus largely on the latter—the “marketplace metaphor”—because it is routinely invoked by the Court and claimants to support a constitutionally protected right to offend.68 However, a consideration of the other rationales is instructive.
First, free speech is understood to be fundamental to a functioning democracy.69 Constitutional protection of speech was central to the project of democracy and self-governance pursued by the framers of our Constitution.70 Thus, safeguarding political speech is a core objective of First Amendment protections.71 Protecting political speech means protecting the people’s ability to criticize the government and engage in open discussion of candidates for public office.72 However, the Supreme Court has never accepted the view that the First Amendment only protects political speech.73
A second rationale is the understanding that free expression is a vital element of autonomy and self-actualization that should not be curtailed by government regulation.74 Proponents of the “autonomy” rationale contend that expressing oneself through speech is equivalent to defining oneself publicly.75 Third, broad freedom of speech aims to promote tolerance.76 Proponents of the “tolerance” justification argue that exposing the public to a wide range of ideas, including the most odious, will foster tolerance for that with which the public disagrees.77 However, critics point out that the intolerance of others need not be tolerated by society.78
The “search for truth” rationale for First Amendment protections of speech, perhaps most famously articulated by Justice Holmes, is the idea that freedom of expression is necessary to aid the discovery of truth via the marketplace of ideas.79 Proponents of this theory argue that the “truth is most likely to emerge from the clash of ideas.”80 Thus, the government must protect all viewpoints, ideologies, opinions, and ideas so that each has a fighting chance to be taken as “true” in the realm of public discourse.81 As will be discussed in detail below, this “may the best truth win” approach to free speech has received substantial criticism.82
In a concurring opinion in Matal, Justice Kennedy grounded the protection of offensive viewpoints in the “marketplace of ideas” rationale for the First Amendment’s protection of speech.83 Justice Kennedy expressed a concern that viewpoints suppressed for being offensive or unpopular would be removed from public discourse.84
B. Government Regulation of Speech Beyond the First Amendment
The divide between speech and conduct is “murky,”85 thus delineating which actions are considered speech is one of the lines contemporary Justices must draw.86 Actions like flag burning,87 cross burning,88 hosting parades,89 and donning armbands90 have all been considered forms of speech by the Supreme Court. Conversely, harmful words uttered in the workplace that are sufficiently pervasive and severe so as to create a hostile environment have been considered unlawful actions under Title VII.91
The Supreme Court addressed hostile environment sex discrimination for the first time in Meritor Savings Bank v. Vinson.92 In Meritor, the Court established that a claim of hostile environment sex discrimination is actionable under Title VII if the alleged harassment is inflicted on the basis of sex and is “severe or pervasive [enough] to alter the conditions of the victim’s employment and create an abusive working environment.”93
In Meritor, Respondent Michelle Vinson brought an action against her supervisor Sidney Taylor, a Vice President of Meritor Savings Bank, claiming that during her four years of employment she had been subject to constant sexual harassment by Taylor in violation of Title VII.94 In addressing Vinson’s claim, the Court deferred to EEOC guidelines defining sexual harassment as including “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”95 The Meritor Court emphasized that, under Title VII, employees have the right to work in a place where they are not subject to insult, intimidation, ridicule, or inappropriate sexual comments—notably all speech-based conduct.96 Since Meritor, the Supreme Court has broadened prohibitions on “sex discrimination” to include discrimination on the basis of gender.97
In the few times that the Supreme Court has considered whether prohibitions of hostile environment discrimination implicate First Amendment concerns, the Court has, in dicta, intimated that these prohibitions target conduct—not speech—and are thus beyond the reach of the First Amendment.98 Federal court decisions in the wake of Meritor reflect that words alone are enough to establish a claim of sexual harassment under Title VII,99 and that laws prohibiting hostile environment discrimination regulate conduct and thus do not conflict with the First Amendment.100
In Aguilar v. Avis Rent a Car System Inc., the California Supreme Court concluded that an injunction prohibiting racial epithets in the workplace did not violate First Amendment rights.101 The Aguilar court reasoned that where there has been a judicial determination that using such language creates a hostile work environment, and thus constitutes employment discrimination, enjoining the use of racial epithets does not run afoul of the First Amendment.102 The Aguilar court noted that, as the Supreme Court clarified in Meritor, not all harassing speech necessarily creates a hostile environment so as to violate Title VII.103 To rise to the level of hostile environment discrimination, speech must be “severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive.”104 The lower court enjoined the racist speech, finding that it met this standard, and the California Supreme Court had no problem upholding the injunction.105
Government regulation of conversion therapy106 is another area implicating the murky distinction between speech and conduct. These regulations have been routinely challenged by claimants asserting that such regulations encroach on their free speech liberty interests.107 Some courts have dealt with these challenges by rejecting the premise that conversion therapy is speech and instead assessing the constitutionality of the regulations in terms of the permissibility of regulating conduct.108 For example, in Pickup v. Brown, the Ninth Circuit considered a constitutional challenge to a California law prohibiting state-licensed mental health practitioners from using conversion therapy on minor patients.109 The Ninth Circuit found that the challenged law regulated conduct, not speech, and was thus beyond the scope of the First Amendment and subject only to rational basis review.110
In making this distinction, the Pickup court articulated a spectrum of professional behavior, with public speech necessitating First Amendment protection at one end and professional conduct having only an “incidental effect on speech” at the other.111 The court placed the challenged law on the latter end, finding it to be a “regulation of professional conduct.”112
The Third Circuit came to a very different conclusion in King v. Governor of the State of New Jersey, when assessing a First Amendment challenge to New Jersey’s ban on conversion therapy.113 In King, the plaintiffs, a group of individual practitioners and organizations that provided conversion therapy, alleged that the ban violated their right to free speech and free exercise of religion and sought an injunction to prevent the ban from being enforced.114 The district court applied the Ninth Circuit’s reasoning in Pickup v. Brown and classified the challenged law as a regulation of conduct—not speech—removing the challenge from the realm of the First Amendment and ultimately upholding the law.115 On appeal, the Third Circuit found that the ban did violate the plaintiffs’ First Amendment rights and classified the challenged law as one targeting speech.116 Finding that the ban was viewpoint-neutral, the Third Circuit applied intermediate scrutiny and ultimately upheld the law.117
Notably, the Eleventh Circuit recently struck down Florida’s ban on conversion therapy, rejecting the classification of conversion therapy as conduct and finding that the plaintiff’s asserted free speech interest outweighed the State’s interest in protecting minors from the harmful practice.118
State antidiscrimination laws that prohibit deliberate misgendering test the government’s ability to regulate words without implicating the First Amendment. Nearly one hundred state antidiscrimination laws were enacted in the last decade.119 Of these laws, those that protect people from discrimination on the basis of gender offer protections in a wide range of situations, including employment, housing, education, credit, and public accommodations.120 Some states particularly provide for protection against discrimination on the basis of gender identity, while others broadly define discrimination on the basis of sexual orientation to include discrimination on the basis of gender.121 While these antidiscrimination schemes differ in their scope and definition, they share a common feature: the enumeration of particular actions that constitute discriminatory conduct.122 Deliberate, repetitious misgendering has been targeted as a prohibited discriminatory act in such laws.
An example can be found in California’s attempt to prohibit deliberate, repetitious misgendering in long term care facilities. In 2017, the California state legislature enacted Senate Bill 219 (SB 219), which added the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights to California’s Health and Safety Code.123 SB 219 details specific actions that would be considered discriminatory towards LGBTQIA* elders in long term care facilities.124 Of particular relevance to this Note is California Health and Safety Code section 1439.51(a)(5) (the “pronoun provision”), which made it unlawful for the staff of long-term care facilities to willfully and repeatedly fail to use a resident’s correct name or pronouns.125
This watershed LGBTQIA* rights bill was enacted to protect LGBTQIA* elders from discrimination in long-term care facilities.126 Though California’s existing antidiscrimination laws purportedly protect LGBTQIA* people from discrimination “on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status,”127 the California legislature found that these laws were not effectively reaching LGBTQIA* elders in long-term care facilities.128
SB 219 was supported by findings that LGBTQIA* elders are particularly vulnerable in these facilities.129 The studies cited by the California legislature show an already marginalized population at its most vulnerable.130 The bill cited a 2011 study finding that almost half of respondents saw or experienced discrimination in long-term care facilities on the basis of an LGBTQIA* identity, including staff misgendering patients.131 The bill was also supported by a 2013 study reporting that the majority of LGBTQIA* elders lived alone, either without children or without children that would be available to care for them.132 The California legislature concluded that LGBTQIA* seniors “have a heightened need for care” yet face barriers to accessing this care, namely, the threat of discrimination in healthcare facilities.133
C. The Right to Offend as an Attack on State Prohibitions of Misgendering
State laws protecting people from discrimination on the basis of gender identity have a great deal of promise.134 These laws create a path for victims of harassment to seek legal redress, potentially deter would-be harassers, and increase the visibility of trans communities within the law.135 However, the realities of our legal system limit how far these laws can actually go.136 Even with antidiscrimination laws in place, socioeconomic barriers mean that those most affected by discrimination often cannot afford the legal help needed to go to court.137 And most relevant to the discussion here, these laws are vulnerable to challengers claiming a right to offend.
This vulnerability is illustrated by the fate of SB 219. From its inception, SB 219 came under attack from conservative opponents.138 In particular, the “pronoun provision,” which carries criminal penalties, was harshly criticized by right-wing groups that feared the provision would result in jail time for staff at long-term care facilities who repeatedly used the wrong pronouns to refer to patients.139 State Senator Scott Wiener, the author of SB 219, called these attacks a “far right freak out” that misrepresents the true nature of the bill.140 Wiener pointed out two flaws in these attacks: first, SB 219 only prohibits willful and repetitious discrimination, and does not purport to criminalize mistakes or the occasional slip up;141 and second, despite criminal sanctions for violations of the bill, these sanctions would most likely result in no more than a fine.142 Professor Courtney Joslin assured that “the bar for criminal prosecution would be extremely high” and that criminal charges would only be brought in cases where the alleged discriminatory conduct carried the potential to cause serious harm or death.143
The conservative response reached a head when Taking Offense,144 a group described as being comprised of at least one California taxpayer, challenged the constitutionality of the pronoun provision in court.145 Taking Offense argued that the First Amendment protects the right to misgender as an expression of ideology, and thus the pronoun provision should be taken as unconstitutional viewpoint discrimination.146
In its briefs, Taking Offense painted a picture of a society marked by two competing worldviews: gender essentialism on one side and a progressive worldview on the other.147 As Taking Offense defines it, gender essentialism, or biological essentialism, holds that “sex and gender are linked and immutable.”148 On the other hand, Taking Offense defines the progressive worldview, which it at times refers to as “the ‘non-binary’ gender constructivist worldview,” as the view that “gender is a matter of personal choice unconstrained by biology, genetics, reproductive capacity, and other objective factors.”149
Taking Offense asserted that the deliberate choice to misgender is an expression of the gender essentialist worldview.150 Thus, Taking Offense argued, by prohibiting deliberate misgendering, California “sides with the progressives against the essentialists.”151 In making this argument, Taking Offense repeatedly invoked the “marketplace of ideas” justification for First Amendment protections of speech.152 In Taking Offense’s view, the contrasting gender ideologies should be left to public debate.153
Taking Offense contended that, because the pronoun provision restricts speech on the basis of viewpoint, the provision triggers the most exacting judicial scrutiny.154 Conceding that its “gender essentialist worldview” might offend LGBTQIA* residents of long-term care facilities, Taking Offense emphasized that “speech is most protected when it is most offensive.”155 Though dubious that the pronoun provision was supported by a compelling government interest, Taking Offense took a firm stance that the provision should fail strict scrutiny at the narrowly tailored prong.156 Taking Offense took particular issue with the criminal penalty imposed by SB 219, labeling the pronoun provision an imposition of a “speech crime.”157 In its briefs, Taking Offense proposed that a more appropriate antidiscrimination approach would be through agency regulation akin to “hostile environment” laws enforced by the Fair Employment and Housing Agency.158
Though the trial court dismissed Taking Offense’s First Amendment challenge,159 California’s Appellate Court accepted Taking Offense’s argument, finding the pronoun provision to be an unconstitutional restriction of speech.160 The appellate court began by assessing what level of heightened scrutiny to apply.161 In defense of SB 219, California’s Attorney General argued that the pronoun provision is merely a content-neutral restriction of speech and as such should be subject only to intermediate scrutiny.162 In support of this reading, the Attorney General argued that (1) California’s motives in enacting SB 219 were benign and antidiscriminatory;163 (2) the provision does not compel speech as staff of long-term care facilities are free to avoid using pronouns at all;164 (3) the provision restricts speech in the interest of LGBTQIA* residents and not the state;165 and (4) that the challenged provision restricts the use of pronouns, which are “merely stand-ins for nouns and are not ideological messages.”166 The court was not persuaded by any of these arguments167 and concluded that the pronoun provision was a content-based restriction of speech because the provision “compels long-term care facility staff to alter the message they would prefer to convey.”168 Thus, the court, citing Reed, concluded it was bound to apply the most exacting level of judicial review to the pronoun provision.169
Before reaching this conclusion, the court considered the Attorney General’s argument that Reed’s mandate of strict scrutiny for content-based speech regulations did not necessarily apply to the pronoun provision.170 The Attorney General pointed out that “courts have been hesitant to apply Reed’s holding to areas of law where alternative tests and different levels of scrutiny had been applied before Reed was decided.”171 The Attorney General argued that the “captive audience doctrine” should be considered among the categories of cases beyond Reed’s reach.172 The captive audience doctrine applies in limited situations where listeners are unable to avoid unwanted speech.173 The court conceded that residents of long-term care facilities are the appropriate listeners for application of the doctrine; however, the court found that the staff of such facilities were inappropriate speakers such that the doctrine did not apply.174 Thus, the court followed Reed and applied strict scrutiny.175
In applying strict scrutiny, the court began by assessing whether California had a compelling interest in enacting the pronoun provision.176 Recounting the legislative findings it previously discussed,177 the court conceded that the challenged provision furthers California’s compelling interest of eliminating sex discrimination.178 However, the court struck down the provision, finding that it failed strict scrutiny at the narrowly tailored prong.179
Notably, the court dismissed Taking Offense’s concern that the criminal nature of SB 219 necessarily meant that the pronoun provision did not take the least restrictive means in effectuating California’s compelling government interest.180 As the court explained, criminal penalties are not universally harsher than civil sanctions.181 However, the court found that the pronoun provision was overbroad, as it threatened to criminalize any “occasional, isolated, off-hand instances of willful misgendering” that were subsequent to a prior incident of misgendering.182 The court took particular issue with the provision’s lack of a requirement that the targeted misgendering have a negative impact on a resident’s medical care.183
In a concurring opinion, Justice Robie emphasized the importance of affirming pronoun use,184 but explained that the California legislature had gone too far with the remedies offered by the pronoun provision.185 Justice Robie suggested that the legislature go back to the drawing board to fashion a less restrictive antidiscrimination law.186
Following the appellate court’s decision, both Taking Offense and the State of California petitioned California’s highest court for review.187 The California Supreme Court granted review on November 10, 2021.188
II. Analysis
A. Modern Free Speech Jurisprudence Subordinates
Contemporary judicial line drawing has not only placed outsized value on the individual’s right to offend but has also become increasingly formalistic.189 In other words, contemporary free speech jurisprudence is more concerned with formal equality than inequitable results.190 As Professor Genevieve Lakier explains, “[t]he result is that today the First Amendment often serves as the ‘primary guarantor of the privileged’ rather than the champion of the powerless it used to be.”191
The first half of the twentieth century saw First Amendment cases brought and won by civil rights groups representing marginalized communities.192 The Supreme Court adjudicated these cases with an understanding that some laws that treated speakers differently were necessary to make up for social, political, and economic differences, while other laws, though formally neutral, disparately burdened marginalized speakers.193 By the 1970s, however, the Supreme Court’s approach to equal protection became notably ahistorical and individualizing—moving away from context-specific considerations of history and power.194 The Court’s understanding of the First Amendment followed suit.195 Rather than considering the social position of speakers and listeners, the Court began to denounce any law that purported to treat people differently based on the ideas or messages they expressed.196
For example, in the 1980s, policies attempting to curtail the problem of racist hate speech clashed with the right to offend protected by the First Amendment.197 Critical race theorists and progressive advocates took issue with the view of the First Amendment that prioritized the free speech liberty interest over claims to equality as not adequately responding to the issue of hate speech.198 Professor Boso diagnoses this “antiquated conception of liberty” as the product of a libertarian approach to free speech that ignores systems of inequality and power and, in doing so, perpetuates these systems—directly conflicting with constitutional commitments to equal protection.199
The government subordinates when it relegates traditionally marginalized communities to the bottom of the social stratum.200 This reification of social inequity is in tension with constitutional and statutory demands of equality.201 Thus, scholars who critique the formalist, or libertarian, approach to free speech proffer a more socially conscious alternative: an antisubordination approach.202 Unlike a libertarian understanding of individual freedoms and formal equality, an antisubordination approach takes history, context, and political power into account when assessing free speech claims.203 Under an antisubordination approach to free speech jurisprudence, free speech claims that enforce status hierarchies must fail.204
B. Antidiscrimination Laws Operate from the Perpetrator Perspective
Antidiscrimination laws are fundamentally flawed and misunderstand that which they seek to prohibit.205 Professor Dean Spade addresses the limitations of antidiscrimination laws and explores how critical race theorists’ critiques of antidiscrimination laws prohibiting racial discrimination provide a generative framework for interrogating how and why antidiscrimination laws “continue to fail to deliver meaningful change to trans people.”206 As critical race theorist Professor Alan David Freeman explains, the foundational flaw of antidiscrimination laws is their focus on the “perpetrator perspective.”207 As opposed to centering the “victim’s perspective,” which understands racial discrimination as a set of lived conditions experienced by communities of racial minorities,208 the “perpetrator perspective” sees racial discrimination as successive actions inflicted by perpetrators on victims.209
Much like a libertarian approach to free speech, antidiscrimination laws that enumerate, prohibit, and punish potentially discriminatory conduct—thus centering the perpetrator perspective—fail in two key ways. First, these laws “individualize[] racism,” and second, they “obscure the historical context of racism.”210 Rather than make affirmative changes to eliminate the conditions associated with racial discrimination, laws working from the perpetrator perspective attempt to stop deviant, would-be perpetrators from acting on racial animus.211 In doing so, these laws critically misunderstand racism by “imagining that the fundamental scene is that of a perpetrator who irrationally hates people on the basis of their race” and takes deliberate discriminatory actions because of that arbitrary hatred.212 In focusing on the anomalous harasser who acts on arbitrary hatred, antidiscrimination laws overlook the myriad “daily disparities in life chances that shape our world along lines of race, class, indigeneity, disability, national origin, sex, and gender.”213
C. Systems Collide: Taking Offense
Undeniably, SB 219’s pronoun provision addresses a need of great importance.214 However, SB 219, like the antidiscrimination laws the bill sought to bolster, falls short of providing perfect protections for residents of long-term care facilities. Both the generalized antidiscrimination laws in place before SB 219 and SB 219 itself center the perpetrator perspective.215 SB 219’s intervention of outlining specific discriminatory actions, including deliberate misgendering, focuses on the actions of potential harassers rather than on what affirmative care for trans residents would look like.216 Supporters of SB 219’s assessment that previous antidiscrimination laws were failing to adequately protect trans elders evinces the failure of the prevailing approach to antidiscrimination laws—a failure SB 219 reifies.
1. The Pronoun Provision’s Design
SB 219 was enacted because other, more generalized antidiscrimination laws enacted by the California legislature were not working.217 Daniel Redman, an attorney who previously led the Elder Law Project at the National Center for Lesbian Rights, described the problem as one of implementation.218 In a senate hearing, Redman explained that though California law already prohibits discrimination against LGBTQIA* people, “[California’s] nursing homes don’t know how to put that principle into practice.”219 Senator Wiener, the bill’s author, hoped that by enumerating “specific actions” that constitute discrimination on the basis of sexual orientation, gender identity, gender expression, or HIV status, long-term care facilities would be better equipped to protect LGBTQIA* residents and would empower residents to know their rights and thus be able to hold facilities accountable.220
The attempt to bolster protections via the enumeration of prohibited discriminatory conduct—including the pronoun provision—is informed by the perpetrator perspective. This attempt centers potential harassers rather than the patients SB 219 was drafted to protect.
However, the biggest problem with SB 219 by far is the criminal penalties it carries. SB 219 attempts to rectify the problem of transphobia in long-term care facilities through the threat of criminal punishment.221 In this way, SB 219 reinforces and legitimizes the criminal punishment system, “a system that targets the very people [the law was] supposedly passed to protect.”222
2. The Pronoun Provision’s Fate
Both the California Appellate Court and California’s Attorney General accepted Taking Offense’s premise: that the pronoun provision implicated First Amendment free speech principles.223 As such, the court was bound to review the pronoun provision under heightened scrutiny.224 However, the court’s analysis fundamentally misunderstands misgendering, diminishes the harm that deliberate misgendering causes, and perpetuates the systemic marginalization of trans and nonbinary people.
The court acknowledged 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.”225 However, the court emphasized that offensive statements are protected by the First Amendment.226
In doing so, the court downplays the harm that deliberate, repetitious misgendering causes, stating that “[t]he pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment.”227 However, deliberate misgendering, especially in a long-term care facility where already marginalized trans elders are at their most vulnerable, is necessarily hostile.228
The court’s analysis of the captive audience doctrine illustrates its ties to a formalist, libertarian understanding of free speech. As the court concedes, elderly patients in long-term care facilities are absolutely a captive audience.229 In equating the position of these patients with that of facility staff, the court ignores palpable power differentials and reinforces status hierarchies.
In sending SB 219 back to the California legislature, the court perpetuates a cycle—the prevailing approaches to free speech jurisprudence and antidiscrimination law are sure to collide again.
3. Reliance on the Marketplace Metaphor
As noted above, invocation of the marketplace metaphor has received ample criticism.230 Critics point out that it is incorrect and dangerous to assume that all ideas have a fair shot at entering the marketplace or that all ideas that enter the marketplace do so on equal footing.231 In reality, some ideas end up being louder than others merely because of a maldistribution of resources for getting a message out.232 Critics also argue that truth cannot necessarily be trusted to win out over falsity, as history has shown that people may be swayed more by emotion than reason, a phenomenon that has only become more prominent as misinformation has been increasingly politicized.233
In makings its viewpoint argument, Taking Offense repeatedly relies on the marketplace metaphor, accusing California of removing the question of gender essentialism from the realm of public debate.234 Taking Offense asserts that people with “conflicting worldviews” about gender “have long lived together in mutually tolerant disagreement.”235 This assertion cannot be squared with the lived experiences of trans people facing discrimination. The “viewpoint” that trans peoples’ pronouns need not be respected is anything but tolerant as, “at a minimum, intentional misgendering is generally considered a demeaning act.”236
Allowing the marketplace metaphor to justify deliberate misgendering not only ignores the harm misgendering causes, but also perpetuates social hierarchies that place trans people in positions of social inferiority.237 As illustrated by a long history of marginalization,238 it is wrong to assume that trans people and advocates have a fair shot at battling it out in the realm of public discourse, if they are given the chance to enter it in the first place. Moreover, in the time it takes for the true harm of misgendering to win out over other “truths” in the marketplace of ideas, immeasurable damage will continue to be done.239 But most importantly, the marketplace metaphor threatens trans and nonbinary people by seemingly putting their identities up for debate. There is no truth to be uncovered by claimants retaining the right to misgender. Rather, invoking the marketplace metaphor in this context clouds the truth by making space for transphobic people to refute the reality that trans people exist.
Not only is the marketplace metaphor inapplicable and harmful when used to support Taking Offense’s claim, but so too are the other central justifications of the First Amendment’s protections of free speech, illustrating that the First Amendment need not be invoked to challenge laws banning deliberate misgendering. First, though often politicized, pronouns are not political speech.240 So, protecting misgendering is not necessary to further democracy and self-governance. Second, the autonomy argument protects expression as a form of self-definition. But what is more self-definitional than controlling the way in which others refer to you? As Professor Boso writes, “our first names and pronouns are fundamental to who we are.”241 Deliberately misgendering someone else is not self-definitional; rather it is an attempt to impose a definition on someone, which is antithetical to the goal of autonomy. Finally, the goal of increased societal tolerance is not served by allowing others to invoke free speech to be intolerant of others.
4. Applying an AntiSubordination Approach
Taking Offense mischaracterizes reality. Trans people exist. This is not a progressive ideology, but is rather an objective fact.242 Courts cannot accept deliberate misgendering as an expression of viewpoint, even a false one, because, as will be discussed in this Note’s proposal, deliberate misgendering necessarily reaches the level of hostility needed to constitute a discriminatory act.243 While transphobic individuals retain the right to announce their hateful opinions about gender and trans people, deliberately and repeatedly misgendering someone is a hostile act and not a vehicle for the expression of an offensive opinion. To demonstrate this distinction, Professor Jessica Clarke offers the following example:
[I]magine a scenario in which xenophobes harass a coworker they know to be from India by referring to him as an “Arab.” This deliberate ascription of an incorrect identity is a form of racism—among other things, it expresses the idea that all people with brown skin are “Arab” and that Indian identity is unworthy of respect.244
Taking Offense repeatedly leans on Matal and an asserted constitutionally protected right to offend others.245 Labeling deliberate misgendering as merely “offensive” downplays the “measurable psychological and physiological harms” inflicted by deliberate misgendering.246
An antisubordination approach to free speech would not accept this argument.247 Importantly, “offense” is a subjective concept; it only has meaning in the context of a subject—i.e., offense to someone. When the subject of offensive expression is the majoritarian perspective, the worthiness of that expression of constitutional protection is called into question.248 In contrast, when the subject of offensive expression is broadened, the expression is constitutionally protected to the highest degree.249
Under an antisubordination approach, Taking Offense’s free speech claim must fail.250 Taking Offense claims a constitutionally protected right to misgender people as an expression of an (offensive) viewpoint.251 In making this claim, Taking Offense adopts a libertarian view of First Amendment protections, obscuring the history of systemic marginalization of and violence against trans people.252 Taking Offense argues that SB 219 and the pronoun provision give trans residents in long-term care facilities outsized power, comparing them to kings and slaveowners.253 When history and longstanding social hierarchies are considered, the absurdity of this argument is striking.254
Taking Offense relies on “the rhetoric and law of content neutrality [as] a shield for hate speech.”255 Taking Offense argues that “SB 219 promotes ideological indoctrination” in its restriction of deliberate misgendering.256 As will be discussed below, allowing claimants to argue that misgendering is a viewpoint delegitimizes the harm of misgendering and obscures an objective truth: trans and nonbinary people exist, and that is not up for debate.257
III. Proposal: Misgendering as Misconduct
The outsized value that modern free speech jurisprudence places on the individual right to express offensive viewpoints puts defenders of antidiscrimination laws in an impossible bind. Pronouns clearly have meaning. However, conceding this point places laws regulating pronouns in danger of being labeled “viewpoint discrimination.” On the other hand, arguing, as the California Attorney General did, that pronouns are merely parts of speech devoid of independent significance downplays the importance of pronouns and diminishes the harm caused by deliberate misgendering.258
This Note proposes that laws prohibiting deliberate misgendering be seen as regulating conduct, not expression, so that reviewing courts and advocates are not trapped by a libertarian approach to viewpoint neutrality. As explained above, none of the foundational goals of the First Amendment’s protection of speech are served by considering misgendering a form of speech. Moreover, current hostile environment frameworks easily include deliberate misgendering, which does necessarily create a hostile environment for trans and nonbinary people.259
Deliberate misgendering, whether at work, in school, or in a long-term care facility, is objectively hostile.260 Though the framework the Supreme Court established in Meritor was specific to the Title VII context, the principle that pervasive, hostile language directed at someone because of their identity rises to the level of discriminatory conduct applies more broadly. As evidenced by the argument that misgendering is the expression of a viewpoint about gender and trans identities, people who deliberately misgender others do so on the basis of sex and gender.
Here, Aguilar is instructive. SB 219’s prohibition of deliberate, repetitious misgendering is analogous to the prohibition on racial slurs upheld by the California Supreme Court in Aguilar. Like Meritor, the claims at issue in Aguilar arose in a workplace setting.261 However, both the prohibition in Aguilar and the pronoun provision were designed to protect a captive audience from discrimination. Repetitious and deliberate misgendering, especially in a context like long-term care facilities where the audience is fairly considered “captive,” arguably meets the “severe and pervasive” standard of hostile environment discrimination.262
Not only would taking antidiscrimination laws that prohibit deliberate misgendering as regulating conduct help advocates break out of the bind imposed by modern free speech jurisprudence, but also these laws would then be subject to a more deferential standard of review. When challenged, provisions regulating conduct are assessed under rational basis review, allowing state legislatures to advance their legitimate interest in protecting trans and nonbinary people.263
In the alternative, if laws regulating deliberate misgendering must be reviewed in the free speech context, it is critical that an antisubordination approach is taken. Under an antisubordination approach, claims asserting a constitutionally protected right to misgender others must fail.
Conclusion
Relying largely on the marketplace metaphor, the Court has enshrined a constitutional right to offend. In doing so, the Court has armed conservative opponents to antidiscrimination laws prohibiting deliberate misgendering with a powerful sword that is being used with increasing frequency, as conservative opponents of these laws use the First Amendment to assert a constitutionally protected right to deliberately misgender others as an expression of an (offensive) viewpoint.
This Note argues that the search for truth is neither furthered by nor supports a protected right to misgender anyone.264 Application of free speech methodologies to the problem of deliberate misgendering obscures objective facts—that intentional misgendering is hostile and harmful—in favor of legal abstractions.265
The biases of modern free speech jurisprudence and legislators drafting antidiscrimination laws from the perpetrator perspective become apparent when they interact with each other—as they invariably do—as evidenced by the law and claims at issue in Taking Offense.