Commentary

D.C. Gov’t’s Transgender Guide Pressures Businesses to Violate First Amendment

Hans Bader
By Hans Bader | June 30, 2016 | 4:18 PM EDT

Washington D.C. (AP Photo)

The District of Columbia is now pressuring businesses to violate free speech in bizarre ways in the name of transgender rights. For example, it wants job interviewers to say things like “Hi, my name is Hans, and I am a ‘he,’” which may leave a very strange impression with job applicants. It also is pressuring employers and workers to use imaginary pronouns like “ze” and “zir” to refer to transgender employees who prefer it (even though few do), and to use ungrammatical plural forms like “they” and “themselves” to refer to individual transgender employees who so desire. The Daily Caller describes this in a June 27 article, “D.C. Will Fine You For Calling A Transgender Person The ‘Wrong’ Pronouns.”

I previously explained why such politically-correct pronoun mandates violate the First Amendment here, and Prof. Eugene Volokh of UCLA Law School discussed how such mandates violates the First Amendment last month in the Washington Post.

The way the D.C. government has gone about this amounts to regulatory “dark matter,” which my CEI colleague Wayne Crews described in a 2015 study. Sometimes, an agency will pressure regulated entities to do things that the Constitution forbids it to directly command, under the guise of offering “guidance” or “best practices.”  Such is the case for the D.C. Office for Human Rights’ recent publication, Valuing Transgender Applicants and Employees: A Best Practices Guide for Employers. That publication is coauthored by the National LGBTQ Task Force.

OHR’s Best Practices Guide outlines general standards it describes as “requirements” under District of Columbia law, requirements that do not seem bizarre on their face (although they are themselves in tension with the First Amendment). Then, it sets forth “best practices” for specifically complying with those standards, practices that are more extreme, and obviously violate free speech if imposed on businesses.

OHR seeks to avoid a legal challenge to those bizarre requirements by saying that “best practices” are “not necessarily considered requirements under federal or District law.” But that concession may not be meaningful, because the Guide also claims that the “The adoption of best practices is essential for creating and maintaining a transgender-inclusive workplace that ensures fair and equitable treatment of transgender employees,” and the D.C. Human Rights Act generally forbids discrimination (and thus inequitable treatment) against transgender employees.

The Guide first states (emphasis added):

“The following behaviors by supervisors or coworkers may be considered unlawful harassment or a hostile work environment:

• “Deliberately misusing a person’s preferred name or pronoun;

• “Asking personal questions about an individual’s … gender identity or expression or transition; … .

• “Posting offensive pictures or sending offensive communications.”

But the command to use “a person’s preferred” pronoun acquires a more extreme meaning later on, as fleshed out in the Guide’s “Best Practices” section. It includes made-up words like “ze” and “zir” as pronouns to be used for transgender workers. It also includes “they” and “themselves” as pronouns for an individual employee, which violates basic rules of grammar, and could create confusion as to the number of employees thereby referred to.

As the Daily Caller notes,

“The ‘best practices’ guide features a chart on ‘gender and gender-neutral pronouns’ that includes the gender-neutral pronoun ‘ze.’ The chart includes example phrases using the gender-neutral pronoun, such as ‘Ze smiled,’ ‘I met zir,’ ‘Zir bike’ and ‘Ze is zirself.’ ‘Regardless of the legal name and gender, employers should use an employee’s desired name and pronouns when communicating with them, and when talking about them to third parties,’ the guide states. ‘The employer must ensure employees respect and use a transgender employee’s preferred names and pronouns, as repeated failure to do so can be considered harassment.’”

OHR’s Guide also says that it is a “best practice” for a business conducting job interviews that it have a practice of “interviewers providing their pronouns alongside their names when introducing themselves, and asking the interviewee their preferred pronouns and preferred name if it is not already known.” This guidance, which OHR describes as “recommended” rather than universally compelled, would lead to strange, awkward introductions by the interviewer, such as “my name is Hans, and I am a ‘he.’ What is your pronoun?”

As the Daily Caller notes, OHR’s Guide is not a parody: “Stephanie Franklin, OHR’s interim director of policy and communications, confirmed in an email that ‘Any workplace environment in DC—private businesses included— in which supervisors or co-workers deliberately misuse a person’s preferred name or pronoun may be considered unlawful harassment and/or a hostile work environment according to DC law.’” Moreover, “Franklin listed a litany of legal penalties for businesses who allow workplace harassment and/or a hostile work environment, including: compensatory damages, attorney’s fees and civil penalties, among others.”

OHR also seems to want employers to give transgender employees the option of using the restroom of either gender, even though non-transgender employees can only use the restroom associated with their gender.  Employers are told to allow transgender employees to use whatever bathroom “they are most comfortable with” right now, regardless of whether it is the “restroom of the gender they are transitioning to,” and “regardless of their personal appearance.” (“Non-binary” employees can pick whichever restroom they want). Essentially, this commands a preference for transgender employees, even though D.C. law only forbids discrimination, and does not command that employers give a preference to transgender employees.

As I’ve explained earlier, OHR is violating the First Amendment by pressuring employers and workers to use imaginary words and bad grammar. The First Amendment forbids such compelled speech, as the Supreme Court’s 1995 decision in Hurley v. Irish-American Gay Group of Boston makes clear.  That ruling said a state’s LGBT rights law could not be used to force a parade to admit a gay-rights contingent, since that constituted compelled speech. Moreover, bureaucrats cannot force private employers to restrict the free speech rights of their employees, as several appeals court rulings have made clear. (See, e.g., Dossett v. First State Bank (2005); Korb v. Lehman (1990); Reuber v. U.S. (1985)). While private employers are not bound by the First Amendment, civil rights bureaucrats are. (See, e.g., White v. Lee (2000)).

The Supreme Court has said mild restrictions on First Amendment rights can sometimes be justified by antidiscrimination laws that promote compelling government interests, although not necessarily severe ones (for example, it ruled that the Boy Scouts’ First Amendment freedom of expressive association could not be abridged by New Jersey’s LGBT antidiscrimination law, in Boy Scouts v. Dale (2000)).

But OHR’s pressure goes beyond what the courts have allowed, since it commands not equal treatment of the transgendered, but a preference in their favor. Non-trangender people have no right to force co-workers to use made-up words to refer to them, or to violate basic grammatical rules, so trangender people should not, either. Courts have ruled that federal civil rights laws do not create a right to affirmative action or special treatment, in cases such as Coalition for Economic Equity v. Wilson (1997).

Since OHR’s Guide interprets the D.C. Human Rights Act, which also covers schools (see DC Code § 2–1402.41), it could also lead to students being taught bad grammar (referring to a single transgender person as “they” or “themselves”). That defeats the compelling societal interest in student learning, which ought to outweigh any interest in mandating politically-correct usage, as I previously explained.

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.