By a vote of 6-3, on June 15, 2020 the U.S. Supreme Court ruled that “an employer who fires an individual merely for being gay or transgender violates Title VII.”
Title VII of the 1964 Civil Rights Act makes it “unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin” (42 USC §2000e-2(a)(1).
Coming days after the Trump administration rolled back health care protections for trans persons, the decision in Bostock v. Clayton County extends the Court’s earlier rulings on marriage equality, guaranteeing queer, trans, and nonbinary people equal treatment in employment.
The majority opinion was written by the usually-conservative Trump appointee, Justice Neil Gorsuch, and it was joined by Chief Justice John Roberts, who generally votes with the Court’s conservatives, and by the four liberal justices.
The Supreme Court’s decision in Bostock and two other cases, brought by Donald Zarda and Aimee Stephens, reflects the general liberalizing of American attitudes toward gender, and an acknowledgment that gender and sex are complex phenomena we are only now beginning to unravel.
But in a section in his dissent in the case headed “Freedom of Speech,” Justice Samuel Alito warns that Bostock not only opens up bathrooms and locker rooms to sexual predators, it runs afoul of the First Amendment by forcing people to use gender pronouns against their will.
To demonstrate this, Alito cites a New York City law that makes “the failure to use an individual’s . . . pronoun a punishable offense.” He adds that some colleges enforce gender pronoun rules, and he refers to newly-created sets of gender-neutral pronouns distributed by the University of Wisconsin-Milwaukee’s LGBTQ+ Resource Center, including fae, e, per, ve, xe, zie, and hir.
Alito implies that somehow this deluge of gender pronouns, now tacitly approved by the Supreme Court, will destroy the English language as well as the American workplace.
Pronoun card created by the University of Wisconsin-Milwaukee LGBTQ+ Office and cited by Justice Alito in his dissent
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Alito is wrong about the dangers of opening up bathrooms and locker rooms to those whose gender doesn’t match the traditional masculine-feminine binary: trans persons have frequently been the victims, not the perpetrators, of violence.
He’s also wrong about pronouns, and so here’s a little grammar lesson for him.
Gender pronouns are nothing new: singular they as an alternative to he or she goes back to the 14th century. Calls for new gender-neutral English pronouns go back at least to the 1780s. Gender-neutral e, es, and em were coined by a Yale-educated physician in 1841; zie first appears 1864 (spelled ze), and the editor of the Sacramento Bee proposed hir in 1920 (the newspaper used it sporadically until the 1940s). One of the best known pronouns, thon, was created by a famous hymn writer in 1858. And heer, hiser, and himer were sponsored by Chicago's Superintendent of Schools in 1912.
In addition, the meaning of gender pronouns in the law—pronouns like he and she—has long been a matter of dispute. Even after England (in 1850) and the U.S. (in 1871) passed laws guaranteeing that the pronoun he in a statute includes ‘she’ as well, courts and legislators frequently decided that, when it came to voting, running for elected office, or entering a profession like medicine or the law, he meant ‘only men.’
And the UW-Milwaukee list of gender pronouns is just the tip of the tip of the iceberg. Well over 200 gender pronouns have been coined, most of them in the nineteenth and early twentieth centuries, long before queer and trans rights became a highly-visible public issue.
Most important, despite Justice Alito’s concern, pronouns are nothing to be afraid of. Language changes, and even parts of language that are slow to change, like the pronoun system, do change over time. Take the second-person pronoun: until the 17th century, thou, thee, and thy were the second person singular pronouns, and ye, you, and your were plural. Then you became singular, and everybody forgot about thou and thee.
Language change is one thing, but Justice Alito, along with many social conservatives, argue that being forced to use gender pronouns violates the constitutional free-speech guarantee. Actually, it doesn’t.
The First Amendment prohibits the government from shutting down most speech. But there’s no constitutional protection for obscene speech, threats, or incitement to violence. Laws prohibit or compel private speech as well; for example, there are prohibitions against swearing in public, and requirements for certain words—like the Surgeon General’s warning—to appear on product labels.
Alito fears that after Bostock, the government can punish anyone who creates a hostile school or work environment not just through discriminatory hiring, promotion, or grading, but by refusing to use someone's pronoun.
But Justice Alito needn’t worry about the government stomping all over English grammar. A majority of trans persons use a conventional binary pronoun, either he or she. The number of people who use coined pronouns remains relatively small. And singular they has been the pronoun of choice for centuries for both binary and nonbinary English speakers.
More important, Title VII targets patterns of discrimination, not occasional, inadvertent mistakes, and it doesn’t dictate how people are to use language outside of work or school. What does change pronoun use is the need for effective communication: we tend to accommodate our words to those we interact with, and if that means changing pronouns, then pronouns will change.
In the end, the directives about pronouns that Alito worries about don’t aim to silence his or anyone else's speech. Instead, their goal is to validate the words of those whose voices have been consistently silenced. Official support for a person's pronouns reinforces the need to maintain respectful, neutral interactions on the job, in the classroom, in the marketplace, and in other public situations where regulation is traditionally seen as appropriate—no different from rules against the use of racial, ethnic, or religious slurs, swearing, or harassment in such situations. Using such words in the workplace or the classroom may not be illegal and it is not unconstitutional, but it may be in poor taste and it can still get you fined or fired.
To learn more about gender pronouns, read What's Your Pronoun? Beyond he and she, available wherever you get your books.