This week in Woke: Actresses justly cancelled for committing atrocities

[Bomb#20]

The guideline says if you speak a certain way you are discriminating. Discriminating is against the law.

It compels speech.

That's inverted. It would be compelled speech if the law determined you are discriminating when you don't speak a certain way.

But discriminating by not speaking a certain way is exactly what the commission's rule says it determines. "Intentional or repeated refusal to use a person’s name, pronouns, or title."

In the examples provided, it demonstrates refusal to use someone's pronouns as 'repeatedly calling a transgender woman “him” or “Mr.” after she has made clear that she uses she/her and Ms'.

True; but examples are just that: examples. Examples aren't intended to be exhaustive, just illustrative. If an employee always substitutes in a coworker's name in order to avoid needing to say "she" or "her", that's refusing to use her pronouns, every bit as much as calling her "him" would be.

'Compelled' speech would only come up in cases where you are required to refer to a person with pronouns or gendered language. The same is true for other protected characteristics. For instance, one might be 'compelled' to refer to same-sex unions as 'marriage' or same-sex partners as 'spouses' if their job requires that.

Why do you assume it only comes up then? That's not what the rule says. If Cindy commonly refers to other employees by saying "he" and "she" where that's idiomatic, but she won't call Don "he" so when she needs to talk about him she switches to an awkward style where she says "Don" more times than she'd have said other coworkers' names, thereby having the side-effect of drawing unappreciated attention to Don's atypical gender expression, and he complains to the NYCCHR, why wouldn't the commission find Cindy to be in violation of the law? Her awkward constructions are giving Don a different employment condition from their other coworkers.

 

[krypton iodine sulfur]

But discriminating by not speaking a certain way is exactly what the commission's rule says it determines. "Intentional or repeated refusal to use a person’s name, pronouns, or title."

The guidance section offers guidance for where the offences may occur in practice. It's nonsense to apply the rule to an instance where you don't use names or pronouns or relevant language. That's like ticketing someone for failure to stop at a red light when they choose a route with no red lights.

True; but examples are just that: examples. Examples aren't intended to be exhaustive, just illustrative. If an employee always substitutes in a coworker's name in order to avoid needing to say "she" or "her", that's refusing to use her pronouns, every bit as much as calling her "him" would be.

If an employer, as a general habit, uses names in place of pronouns, then no. I mean, if that's the extreme they want to go to not recognize gender identity, so be it. While the examples are not meant to be exhaustive, they are supposed to highlight the notable cases so that employers know how to interpret the law. It would be a notable omission to not include any example beyond refusal to use the appropriate title or pronoun by way of using an inappropriate one. It's not that your interpretation is impossible. It's just unlikely, unless perhaps the employer singled out the employee by only avoiding certain language with them, in which case, I don't know what would happen. The law is meant to deal with discrimination. The guidance section is meant to offer practical interpretations of what would be considered discrimination. But it can only address matters with so much complexity. Cases would vary based on their own unique circumstances and considerations.

Why do you assume it only comes up then? That's not what the rule says. If Cindy commonly refers to other employees by saying "he" and "she" where that's idiomatic, but she won't call Don "he" so when she needs to talk about him she switches to an awkward style where she says "Don" more times than she'd have said other coworkers' names, thereby having the side-effect of drawing unappreciated attention to Don's atypical gender expression, and he complains to the NYCCHR, why wouldn't the commission find Cindy to be in violation of the law? Her awkward constructions are giving Don a different employment condition from their other coworkers.

Because the law doesn't make any requirement of Cindy to call people 'he' or 'she' in general. There are limited circumstances which necessitate referring to people by name, gender or sex. The fact that the English language embeds gender fairly heavily isn't an imposition of the law. Being habituated to using gendered language isn't the same as being lawfully compelled to use specific gendered terminology. In practical terms, maybe it's unwieldy, but that's not because the law is applying some extraordinary principle. It just happens that gender/ sex are more heavily embedded into our daily language than any other protected characteristics.

 

[Bomb#20]

But discriminating by not speaking a certain way is exactly what the commission's rule says it determines. "Intentional or repeated refusal to use a person’s name, pronouns, or title."

The guidance section offers guidance for where the offences may occur in practice. It's nonsense to apply the rule to an instance where you don't use names or pronouns or relevant language. That's like ticketing someone for failure to stop at a red light when they choose a route with no red lights.

We seem to be talking at cross purposes -- I don't think Metaphor was referring to somebody saying "You see the game last night?" instead of "You see the game last night, Mister Johnson?". He and I meant instances where people normally would use names or pronouns or relevant language. In an instance where there's no reason in the first place to use names or pronouns or gendered titles, not using them isn't "refusal"; but in an instance where an idiomatic English speaker would naturally use them but you avoid it for a transgendered person, that's "refusal".

Examples aren't intended to be exhaustive, just illustrative. If an employee always substitutes in a coworker's name in order to avoid needing to say "she" or "her", that's refusing to use her pronouns, every bit as much as calling her "him" would be.

If an employer, as a general habit, uses names in place of pronouns, then no. I mean, if that's the extreme they want to go to not recognize gender identity, so be it. While the examples are not meant to be exhaustive, they are supposed to highlight the notable cases so that employers know how to interpret the law. It would be a notable omission to not include any example beyond refusal to use the appropriate title or pronoun by way of using an inappropriate one. It's not that your interpretation is impossible. It's just unlikely, unless perhaps the employer singled out the employee by only avoiding certain language with them, in which case, I don't know what would happen.

In practice, conflicts over discrimination charges aren't usually about an employer violating a nondiscrimination rule. They're usually about a fellow employee violating a rule; the law holds employers responsible for what their employees do. Sure, it's unlikely that an employer would single out transgendered employees by only avoiding certain language with them -- employers as a rule tend to be more concerned with money-making and with smoothing the path to money-making by avoiding bringing down the wrath of a government agency on their heads, and less concerned with not backing down when they feel they're in the right -- but it's quite likely that a fellow employee would do exactly that.

Why do you assume it only comes up then? That's not what the rule says. If Cindy commonly refers to other employees by saying "he" and "she" where that's idiomatic, but she won't call Don "he" so when she needs to talk about him she switches to an awkward style where she says "Don" more times than she'd have said other coworkers' names, thereby having the side-effect of drawing unappreciated attention to Don's atypical gender expression, and he complains to the NYCCHR, why wouldn't the commission find Cindy to be in violation of the law? Her awkward constructions are giving Don a different employment condition from their other coworkers.

Because the law doesn't make any requirement of Cindy to call people 'he' or 'she' in general.

I don't understand how you get from that premise to the conclusion that the commission wouldn't find Cindy to be in violation of the law. If a boss requires her male employees to wear ties but not her female employees, the fact that the law doesn't make any requirement of her to let employees go tieless in general won't protect her from a discrimination charge. It's disparate treatment that's prohibited, not one version of the treatment or the other.

There are limited circumstances which necessitate referring to people by name, gender or sex. The fact that the English language embeds gender fairly heavily isn't an imposition of the law. Being habituated to using gendered language isn't the same as being lawfully compelled to use specific gendered terminology. In practical terms, maybe it's unwieldy, but that's not because the law is applying some extraordinary principle.

If it were the intent of the commission not to apply some extraordinary principle then they would say what's prohibited is misgendering. Why would they prohibit "Failing to Use" certain words, instead of saying which words you're not allowed to use, unless they intended to compel specific gendered terminology?

It just happens that gender/ sex are more heavily embedded into our daily language than any other protected characteristics.

Right; none of us asked for this. The language is evolving to de-embed it. It's become near-universal in my part of the country in formal corporate speech to address everyone by first name rather than by last name, just so gendered titles will become red lights on the route not taken.

 

[krypton iodine sulfur]

We seem to be talking at cross purposes -- I don't think Metaphor was referring to somebody saying "You see the game last night?" instead of "You see the game last night, Mister Johnson?". He and I meant instances where people normally would use names or pronouns or relevant language. In an instance where there's no reason in the first place to use names or pronouns or gendered titles, not using them isn't "refusal"; but in an instance where an idiomatic English speaker would naturally use them but you avoid it for a transgendered person, that's "refusal".

You're applying the same interpretation, only you are adding the 'idiomatic' criteria. The guidance document does not define that as refusal or failure. The most literal interpretation we could possibly apply would be that we obligately refer to everyone by their name, title, and pronouns even when there is no contextual demand for it. Somewhere between that extreme and reality lies the intent of the guidance document. And somewhere between the intent of the guidance document and the actual law lies the practical threshold for discrimination.

In practice, conflicts over discrimination charges aren't usually about an employer violating a nondiscrimination rule.

The point wasn't contingent on it being the employer.

I don't understand how you get from that premise to the conclusion that the commission wouldn't find Cindy to be in violation of the law. If a boss requires her male employees to wear ties but not her female employees, the fact that the law doesn't make any requirement of her to let employees go tieless in general won't protect her from a discrimination charge. It's disparate treatment that's prohibited, not one version of the treatment or the other.

Because it isn't disparate treatment if the employer (or employee, or customer service rep. etc) applies the same standard to everyone. Because the state makes no law on the wearing of ties, rules such as 'everyone wears ties', 'no one wears ties', or 'everyone chooses for themselves whether to wear ties or not' do not create dress codes which give differential treatment on the basis of sex, gender identity or expression. And if anyone has a concern that

If it were the intent of the commission not to apply some extraordinary principle then they would say what's prohibited is misgendering. Why would they prohibit "Failing to Use" certain words, instead of saying which words you're not allowed to use, unless they intended to compel specific gendered terminology?

Misgendering isn't a defined term in that guidance document. Failing or refusing to use the preferred name/ title/ pronoun to refer to or address a person is the same as using an inappropriate term if the context is situations where names/ titles/ pronouns are used. This doesn't come with a requirement that you use gendered language, generally. There are few cases where it may be required specifically.