Names, pronouns & the law

Everyone knows that personal names are not like most nouns. The words basket and daisy are such that if I use them to refer to appropriate objects, all speakers of English will imagine much the same things. And if I use them to refer to inappropriate objects—calling a basket a daisy or a daisy a basket, for example—everyone will chastise me for making no sense. By contrast, names—Peter, say—will mean different things to different people and have, therefore, no definition that is easy to pin down: when I use the name, am I referring to the apostle Simon Peter, Peter Paul Rubens, Peter Thiel, one or the other of my two cousins named Peter, or someone else entirely? And, beyond this, is there in fact something essential about Peter-hood that all of them have in common?

For that matter, what about someone named Daisy? In some cultures, it is normal for names to “mean something.” In ours this is not uncommon, especially for women (Faith, Hope, and Apple, the daughter of Gwyneth Paltrow and Chris Martin), but also not the norm. I expect most of us think about daisies, at least fleetingly, when reading about Daisy Buchanan, but we are highly unlikely to think about twins in connection with her husband Tom (the name Thomas goes back to the Aramaic word for “twin”)—or about rocks in connection with any Peter of our acquaintance except, maybe, the first pope. Also highly unlikely, to be sure, is that many people without a special interest in etymology know or pay attention to the fact that the word daisy is originally a collocation: Old English dæges eáge, “day’s eye.”

Philosophers of language spend a lot of time debating the ins and outs of the semantics of names. I am a linguist, not a philosopher, and my initial goal is modest reflection, born of years of observing how people deal with names, particularly “funny” ones. After that, I consider a painfully fraught topic: pronouns—which everyone knows are not like most nouns either.

But why should names and pronouns be examined together anyway? Recent court cases about the comparative “truth” of the two linguistic categories suggest that the matter is ripe for a national reckoning.

First things first: I view it as a basic courtesy to make an effort to get other people’s names right. I am no fan of Kamala Harris, but when people who have heard her name hundreds of times persist in putting the stress on the second syllable and say kuh-MAH-luh, I get annoyed. It seems just plain rude. Still, it’s a nominal problem, by which I mean both that it concerns nouns and that it’s not so big a deal.

Another thing I’m no fan of: being regularly offended by so-called microaggressions. That said, while it seems to me not only ridiculous but positively unethical to censure someone for saying “America is a melting pot” or “Work hard, be nice,” I have no trouble understanding why a person would wish for his or her personal name to be pronounced more or less correctly.

I emphasize “more or less.” When a reasonable American named Harry hears an Italian call him “Arry,” he will smile rather than object; and a reasonable German named Michael (MI-cha-el: three syllables, and with “ch” pronounced the way many of us say the h in humor) will not complain too much when an American says MAI-kul. The fact is that intent matters. There is no linguistic reason why a speaker of English should find kuh-MAH-luh easier than KAH-muh-luh; native speakers of English have not suddenly decided en masse to stress the second syllable of “Pamela.”

At the risk of being accused of egotism, let me turn to Joshua. Most people who have known me all my life call me Josh, but I prefer Joshua. A number of Josh-ers do this with obvious affection, including my parents, and I generally don’t try to get them to change their ways. (One friend, who has a name people regularly mispronounce, once told me that she refuses to call me Joshua because it’s so obvious to her that I’m a Josh.) But it is astonishing to me that, when I introduce myself to someone, more than nine times out of ten—this is not an exaggeration—the exchange will go like this: “Hi, I’m Joshua.”/ “Nice to meet you, Josh.” Or when I write letters, even official ones, more often than not the response to “Best wishes, Joshua” or “Sincerely, Joshua Katz” is “Dear Josh.” (When I went to vote last November, the poll worker stared at the online profile for “Katz, Joshua” and without a second thought wrote “Josh Katz” on the chit I had to hand to her colleague.) People who correspond regularly with me know that I tend to sign off emails as just “J.,” something I started doing decades ago because the Joshua–Josh dynamic was driving me crazy. As a result of this, a few people actually call me Jay, which I rather like—or, in one sweet case, Jay Joshua.

Now, I know that Pamelas are often shortened to Pams without explicit permission—and Michaels to Mikes. People enjoy the intimacy that hypocorisms (that’s Greek for “pet names”) and nicknames (formerly known as “icknames”: Middle English éke-náme, “additional name”) establish. But the truly extraordinary frequency with which Joshua becomes Josh calls out for a special explanation. And, in fact, there is one. However, to paraphrase a French Peter, Pierre de Fermat, there is not sufficient space here to write it out.

Enough about me. People I am associated with have greater nominal problems. My wife, Solveig, has a name that throws nearly everyone who is not Scandinavian—and, unfortunately, the Scandinavians, too, since when we went to Norway a few years ago, Solveig discovered, to her dismay, that her name over there (roughly SOOL-veye) doesn’t sound very much like her name here (SOL-vay). In both the United States and Norway, however, the final g is silent, though many people who have known her all her life pronounce it anyway. She doesn’t seem to care. Her mother—my mother-in-law—is Kari, pronounced KAH-ree. Do not call her Carrie. She does care.

Then there is my mother, Meta, the German first name also of her mother and her mother’s mother. The correct pronunciation is MAY-ta, but she most often gets MEH-tuh or MEH-duh or MEE-duh. While she doesn’t seem to care very much, she now faces a graver issue, one of spelling rather than sound: since late 2021, when Facebook Inc. changed its name, no day goes by without ads for Meta, nasdaq quotes for meta, and headlines like “Meta Has Another Problem” and “Meta Rolls Out More Parental Controls.”

So far in this metalinguistic essay I have used a number of non-neuter third-person singular pronouns and pronominal adjectives: he once, she six times, him once, his once, and her thirteen times (both as object and as possessive). (I have not used ze, faer, or xyrs and expect never to do so, unless to illustrate a point.) Suppose, however, that I were to ring changes on some of my sentences. Two examples:

(i) When a reasonable American named Harry hears an Italian call her “Arry,” she will smile rather than object.

(ii) Her mother—my mother-in-law—is Kari, pronounced KAH-ree. Do not call him Carrie. He does care.

You are unlikely to be able to process these altered sentences. As to the first, it is of course true that girls and women are sometimes called Harry (mostly it’s a nickname for Harriet or Henrietta), but this is unusual: there is a reason J. K. Rowling called Harry Harry rather than Hermione—or (with apologies to Ryan T. Anderson) Sally. Adding to the confusion, though, is this: perhaps Harry has a penis but identifies as a woman.

And then there is the interpretation of the second sentence. Good luck: Kari here is clearly not a man since I introduced her as my wife’s mother.

Clearly. And yet I wonder how many people in 2023 (upper-middle-class blue-staters, mostly) consider what I just wrote to be transphobic or otherwise problematic. After all, Apple (the company, not the daughter of Gwyneth and Chris) introduced a pregnant man emoji in the spring of 2022.

Another thought experiment, in the form of three more examples:

(i′) When a reasonable American named Harry hears an Italian call them “Arry,” they will smile rather than object.

(ii′) Her mother—my mother-in-law—is Kari, pronounced KAH-ree. Do not call them Carrie. They do care.

(iii) I have no trouble understanding why a person would wish for their personal name to be pronounced more or less correctly.

There is, I think it fair to say, a substantial difference between the final sentence and the preceding two. While I am too linguistically conservative to be a fan of their for his or her—the use as a generic singular, in other words—there are times when it would indeed be “deranged” (thus Bryan A. Garner) not to use it, and I am in any case well aware that it occasionally creeps into my speech. Furthermore, this their and related forms have a long and venerable history (see the Oxford English Dictionary s.vv. they A. I. 2a, b; their A. I. 2a, b; and them A. I. 4a, b), have advantages over the clunky his or her, and avoid the sexism of imagining that some unknown person is necessarily male or, for that matter, female.

They and them have to be interpreted not as generic but rather as gendered singulars.

But in the first two sentences, they and them have to be interpreted not as generic but rather as gendered singulars, with Harry and Kari thus specifically identified as gender nonbinary or nonconforming. As I do not need to tell anyone who is reading my words, acceptance of this twenty-first-century usage, which the oed first records from 2009 (s.vv. they A. I. 2c; their A. I. 2c; and them A. I. 4c) and which Merriam-Webster considered important enough to make they its “Word of the Year” in 2019, is now widespread in elite circles, where it is increasingly mandated under considerable social and sometimes legal threat. For pretty much all other Americans, however, this quasi-religious they is ridiculous and arguably dangerous. Leor Sapir in City Journal has made in my view the best case for “resist[ing] this form of narcissism-fueled political theater” (“Don’t Say ‘They,’” April 2022), but it is important to recognize also “The Liberal Case against Pronouns,” to quote the title of an article on UnHerd from March 2022 by Andrew Doyle.

Which brings us to some big questions about the practical, moral, and above all linguistic and legal similarities and differences between names and pronouns—or, to take their Latin antecedents, between nomina (“names”) and pronomina, the prefix of which gives it the literal meaning “in place of names.” In particular, two questions arise. First, what is the relationship between names and pronouns? And second, what is the relationship between the assignment of names and the assignment of pronouns? To answer these, we will need to talk linguistic shop for some time and then move on to sex and gender.

What, from the perspective of a linguist, do names and pronouns have in common? While everyone agrees that pronouns are not a subclass of nouns, despite their obvious connection, there is considerable disagreement over the relationship between names (Old English naman, cognate with nomina and Greek onomata, the latter the source of our word onomastic) and nouns (borrowed from Anglo-Norman/Middle French nuns, itself descended from nomina). Some scholars consider names (of which personal names are themselves a subclass) to be nouns; others emphatically do not.

A related issue concerns what one might call the expansiveness of each category. Words in a given language typically belong to either an open or a closed class: the former is one that routinely accepts new items, the latter one that very rarely does so. There are differences across languages, particularly as regards adjectives, but nouns are always open-class (think of bae, bitcoin, and burkini, all recent additions to English) while pronouns in the languages with which most of us are especially familiar are closed-class—or so it is usually said. The status of personal names, however, is disputed, with most linguists, including me, regarding them as fundamentally open but other linguists as closed. The issues are complicated and in some sense tied to how one perceives the relationship between name-nomina and noun-nomina

It is not in fact uncommon to encounter languages, especially in East and Southeast Asia, in which pronouns are an open class: Japanese, Lao, Thai, and Vietnamese, for example. Furthermore, what I have already said about a closed class being one that “very rarely” accepts new items points to a problem: “very rarely” is not the same as “never”; it is always possible to expand a class, even if the expansion is not dramatic. In the case of English, while the current craze for neopronouns is extreme, at least since the late eighteenth century there have been hundreds of attempts—until recently nearly all of them thoroughly unsuccessful—to introduce epicene pronouns into everyday speech.

In 1808, for instance, none other than Samuel Taylor Coleridge suggested using it as a “neutral” alternative to he, him, she, and her—an idea that, as Christopher F. Rufo has reported, the San Francisco Unified School District now affirms. But most of the attempts have involved new forms: in 1792, the Scottish economist James Anderson suggested the dialect form ou; in 1864, the competing alternatives ve and ze were proposed in separate contributions to the Cincinnati-based Methodist monthly The Ladies’ Repository; and no later than 1884, and possibly some decades earlier, the attorney and composer Charles Crozat Converse devised thon, which made its way into the second edition of Webster’s New International Dictionary (1934) but was dropped from the familiar third (1961). These and many more examples are carefully documented by Dennis Baron in his 2020 book What’s Your Pronoun?: Beyond He & She. (We know that it is “his book,” by the way, since the dust jacket helpfully supplies Baron’s pronouns: “he/him/his.”)

To return to my point: if English names and pronouns belong to the same class—closed if one is a linguist of the minority camp when it comes to names, potentially open if one believes that some neopronouns like ze, faer, and xyrs have succeeded—then that might be a reason to treat them in the same way for extra-linguistic, and above all legal, purposes. But I stress “might be” and “a”: there are other considerations, and belonging to the same class is surely not dispositive. If, however, we accept that names and pronouns belong to different classes, then a linguist has to look elsewhere for arguments that they must have the same legal status.

It would take us too far afield to try to resolve the matter of the class of personal names in English. But with pronouns, the academic and the personal collide: those who have in recent years begun regularly using ze, faer, xyrs, and their ilk (a millennium ago, Old English ilca was a pronoun meaning “the same”) have reason to believe that pronouns are open-class; but for people like me, who think that ze is a sociopolitically charged frindle (that’s the made-up word for “pen” that causes trouble in Andrew Clements’s 1996 children’s novel Frindle), there is no cause to doubt that they are closed. In short, it is possible that in the coming generation or two, one or more neopronouns will be used widely, even to the point of becoming mainstream, in which case the matter will need to be reassessed; until this happens, however, I cannot condone making and enforcing laws about their use. To be sure, they presents a somewhat different case: like Coleridge’s it, the form already exists—and has existed in English since its own days as a plural neopronoun in the late twelfth century—and is simply (though, really, not simply at all!) gaining new referents. The same might be said of the pronouns that David E. Bray, an anti-woke professor of business at Kennesaw State University, uses in his email signature: “hilarious/handsome/homosexual.” As Jennifer Kabbany of The College Fix puts it, “He knows they’re adjectives” but says, “Why do pronouns get to have all the fun?”

A major issue is pronominal flux.

I will return to the law, but since a major issue is pronominal flux, it will be useful to consider, briefly, what we know about linguistic change in pronouns. First of all, pronouns change in sound over time—take you, which goes back directly, via regular phonological development, to the rather different-sounding form *izwiz in Proto-Germanic, the reconstructed precursor of English of about 2,500 years ago—but so do all words. Furthermore, pronouns change in scope of meaning over time—in addition to they, take the thoroughly uncontested example of you in standard English, which has in recorded history added the functions of thou and thee—but, again, so do all words. Most important for the present purposes is that closed-class words can be added (and, of course, subtracted: thou and thee). We do not need to turn to ou, thon, and ze to see this: witness the ordinary plural pronouns in th-, which are borrowings into English from Scandinavian, as well as the success of such dialectal neopronouns as y’all, yinz, and youse (guys), which take the place of plural you, whose meaning in those dialects is now exclusively that of old thou. The big question is, how and where do we draw lines? At what point do we accept that an addition or change is truly part of a given language?

Back now to sex, gender, and assignment. There is no dispute that children are assigned names by their parents in all but the most unusual of circumstances and, furthermore, that parents have considerable latitude in what names they may assign. Different onomastic rules exist in different states, not to mention different countries, some of which are stricter than the United States, where the First and Fourteenth Amendments are generally interpreted as giving parents the right to do largely what they wish. On this subject I highly recommend Carlton F. W. Larson’s 2011 George Washington Law Review article “Naming Baby: The Constitutional Dimensions of Parental Naming Rights.”

Exceptions that most will not find controversial are obscene names and, for practical reasons, ones of extreme length, though if you want ostensibly to be entirely free in this regard, you may try your luck in Kentucky. Californians, by contrast, are not allowed to name their children José (!) or Aðalbjört since diacritical marks and letters aside from our standard twenty-six are no-no’s, as are Arabic numerals and pictographs (e.g., smiley faces). The son of Elon Musk and Grimes, born in 2020, was originally assigned the first (or “given”) name X Æ A-12 by his parents, who were forced to alter it to X AE A-Xii (the hyphen remained since this punctuation mark and the apostrophe are licit). Musk’s move from California to Texas in 2021 would not have affected the change since the laws in the two states are similar.

Everyone believes that people are permitted to change their last names when they get married, and there is also little dispute that, at least when they reach the age of majority (and sometimes earlier), people may legally change their first and other given names. Again, different states have different rules, but the only common reason to block a name change is a suspected desire to escape debt, engage in fraud, or take part in other criminal activity.

Consider this case: on turning eighteen last year, one of Elon Musk’s children with his ex-wife Justine Wilson successfully petitioned the court for a name change from Xavier Musk to Vivian Jenna Wilson. There are countries where this would not be allowed—in Denmark, for example, you can’t call a male by a girl’s name or a female by a boy’s—but few Americans will object, even those who don’t like the choice (the “Boy Named Sue” problem, Larson calls it), and not merely because Vivian can be a male name (especially in Britain and the Caribbean, as in Vivian Campbell, the Northern Irish heavy-metal guitarist, and Vivian Jackson, the late Jamaican reggae artist better known as Yabby You). At issue is not really the name Vivian but the Musketeer’s other successful petition to the court: the change of gender to female.

Here are two big questions. One: should people be allowed to change—that is to say, reassign—their gender? In order to answer this without a knee jerk, we need to know what “gender” means and to agree that it is something that is in fact changeable. Unfortunately, these matters are anything but trivial. And two: what constitutes “assignment”?

We grant that parents assign names: there is nothing about any newborn baby that demands he or she be given the name Peter or Daisy. We also grant that once-babies named Peter and Daisy may decide to call themselves Pete and Daze; go by their middle names instead; or, for that matter, ask (though seemingly not demand) that others, for whatever reason, call them Jack and Jill—respectively, for it would seem that if Peter wishes to become Jill and Daisy to become Jack, then they may be able to demand this. (This is no trivial point, and we will return to it.) Furthermore, we grant that once-babies may, at some point in their lives, not only call themselves by a name other than the one their parents assigned to them but also legally change it.

We need to resolve what we mean by gender and what its relationship is to sex.

But who has the responsibility for assigning gender? Before answering this, we need to resolve what we mean by gender and what its relationship is to sex—highly controversial questions these days, with each week bringing a torrent of strongly expressed, often vituperative “news” articles, op-eds, and podcasts that present wholly contradictory points of view. It would be ridiculous to try to summarize them quickly and essentially impossible for anyone to do so evenhandedly, not least since the definitions of “sex” and especially “gender” are labile, with certain putative meanings inevitably prioritized according to a given commentator’s agenda.

We are in such a pickle in 2023 that some people consider the standard liberal mantra of recent decades, “Sex is biological, gender
is social,” to be backwards: for them, gender is biological, sex social. On this new increasingly prominent progressive opinion and much else, particularly intersex conditions, I recommend another outstanding recent article in City Journal by Leor Sapir, “Transgender Confusions” (Winter 2022). As Sapir notes, “According to this anthropology, ‘biological sex’ is a social construct, while gender identity is real, universal, and scientifically demonstrable.”

While the far Left eats the Left, let me say what I hold true. First of all, despite rabid arguments to the contrary, sex is not changeable and thus cannot be assigned. It simply is. (Of course there are cases where doctors or parents make a mistake and think a biologically male infant is a female, or vice versa. But these are errors—often regrettable errors, to be sure—not mis-assignments.) There are two and only two sexes: male and female. There is no spectrum. Yes, the oed in June of last year added some new entries and senses for words of gender expression, including a “new sense of the verb to assign [that] details the linguistic history of assigning a sex or gender to a person, and later, assigning a person as being a given sex or gender.” But the dictionary also has entries for, say, alchemy and phrenology, in neither case noting as part of the definition that “the transmutation of baser metals into gold” or “the study of the external conformation of the cranium as an index to the position and degree of development of the various faculties” is bunk.

Back to the two sexes. My belief in gonochorism—males are heterogametic, with XY chromosomes and the function of producing sperm; human females are homogametic, with XX chromosomes and the function of producing ova—comes from biology, not from such biblical passages as Genesis 1:27, though there is a reason only very few people in our cultural sphere from biblical times until just a few years ago would have doubted that sex is binary, never mind dismissed the assertion as somehow “phobic.” For a compelling and easily accessible account, see Tomás Bogardus’s post “How Our Shoes Can Help Explain the Biology of Sex” (August 2022) on Colin Wright’s invaluable blog, Reality’s Last Stand. Bogardus concludes that while there is no clear evidence of a true simultaneous human hermaphrodite (unlike the common garden snail), even if there were, that person would not be an instantiation of a third sex but rather a combination of sex.

Now, what about gender? Just to ask the question is to subscribe to some notion of dualism, for if there is no difference between sex and gender, then since sex is biologically defined and cannot be altered, there is nothing more to say: each of us is either male (a man; pronouns he, him, his) or female (a woman; pronouns she, her, hers). If you are anti-dualistic—if, that is, you believe that one’s body is an intrinsic and essential part of one’s personhood rather than something extrinsic and incidental—then denial of bodily unity is a sign of mental illness. Highly recommended for this perspective are Patrick Lee and Robert P. George’s hard-hitting 2008 book Body–Self Dualism in Contemporary Ethics and Politics and Abigail Favale’s recent lyrical contribution The Genesis of Gender: A Christian Theory.

But suppose for the sake of argument that there is in fact a difference between sex and gender, that there are biological males who sincerely believe they are in some sense female, biological females who sincerely believe they are in some sense male, and individuals who sincerely believe they are neither male nor female but are instead in some sense both or neither. This leads to two sorts of questions. First, what does “in some sense” mean? And second, if there is a conflict, does sex trump gender or does gender trump sex?

Let’s start with the first question, understanding that it is impossible for anyone, however good-willed, to keep up with definitions—definitions that vary from person to person and from day to day, in part because there is disagreement over whether gender is about gender identity, gender expression, or some combination of the two in an as-yet-to-be-agreed-on proportion. A quick way to understand the monster that “gender ideology” is creating is to examine the “Genderbread Person” and the “Gender Unicorn.” The former, a “teaching tool for breaking the big concept of gender down into bite-sized, digestible pieces,” has gone through multiple revisions in recent years (we are currently at version 4.0). Now ubiquitous in schoolrooms across the country, it is nonetheless the subject of controversy in part because the man with which it is most associated, Sam Killerman, is regularly derided by other social justice warriors who are so far removed from reality that they feel this cookie has not gone nearly far enough in combating heteronormativity, cisnormativity, and the notion of the gender binary. (Think I’m exaggerating? Check out sjwiki.org.) As an alternative, there is now the latter option, the Gender Unicorn, which maps onto a purple creature gender identity, gender expression, physical attraction, and emotional attraction, along with “sex assigned at birth.”

Representational baked goods and mythic beasts are only one corner of our new, confused world. We have yet to experience the full waves of legal consequences of the already famous Supreme Court employment case Bostock v. Clayton County, in which Justice Gorsuch’s view of transgenderism (I leave aside what he says about sexual orientation) led him to reinterpret “sex” in Title VII of the Civil Rights Act of 1964—and thus, presumably, in over 160 further federal statutes that Justice Alito lists in Appendix C of his dissent—to include “gender.” It must, however, be stated plainly that aside from the “pirate ship” textualism and usurpation of legislative authority exhibited by the majority, both roundly criticized by Justice Alito, there is the very real problem that without a plausible and stable understanding of gender, there will for this reason alone be lawsuits about matters that go beyond employment law till kingdom come: about bathrooms and sports teams, of course, but also about pronouns and “deadnames.”

Not incidentally, these suits are likely to come from the Left as well as the Right since the assumption in Bostock is that transgenderism must involve a move from male to female or from female to male. Words such as “nonbinary” and “genderqueer” go unmentioned in the 168 pages of the opinion and two dissents, and Catherine Jean Archibald in an article in the Connecticut Law Review in 2020 notes that Bostock “leaves open the question of whether . . . non-binary transgender employees” are protected, writing that “This gap in the Court’s decision remains for future cases to fill in.” While it may be that William N. Eskridge Jr. and Christopher R. Riano, the authors of the 2020 book Marriage Equality: From Outlaws to In-laws, are correct that the ruling does “appl[y] to nonbinary persons whose sex identity is neither male nor female, is ambiguous, or is evolving,” there are certain to be challenges. The latest version of the so-called Equality Act, which passed the House of Representatives in 2021 but was never taken up in the Senate, says nothing about pronouns but does include two mentions of “gender nonbinary people.” This contentious act may well re-emerge in this 118th Congress, at least in the Senate, where Kamala Harris (“my pronouns are she and her, and I am a woman sitting at the table wearing a blue suit”) gets to cast the deciding vote in the case of a tie.

And then there is the second question that arises if we grant that there is a difference between sex and gender and yet create laws that do not acknowledge the distinction. What matters in a given circumstance? Does biology win out over feeling/self-assignment, or is it the other way around?

The controversies are depressingly familiar.

The controversies are depressingly familiar. Should biological males compete in women’s sports if they identify as (i.e., assign themselves to be) female? Should such biological males be housed in women’s shelters and prisons? What are society’s obligations to those who refuse to call themselves either male or female, or who call themselves male one day, female the next, and then male again the day after that? And—to return to my subject—should biological females who identify as male be addressed with masculine pronouns, should biological males who identify as female be addressed with feminine pronouns, and should individuals who identify as neither or both be addressed as they, e, or whatever pleases them at a given moment?

What is the deontic force of “should” here? If it is an obligation to address people with their preferred pronouns, is this a moral obligation or a legal one? (I point in passing to the remarkable claim in Stanford’s much-parodied “Elimination of Harmful Language Initiative” that everyone should now “consider using” the term “pronouns” instead of the newly imposed “preferred pronouns” since “[t]he word ‘preferred’ suggests that non-binary gender identity is a choice and a preference.” The matter is, of course, not confined to the nonbinary.) If you are not a dualist, you will be strongly inclined to refer to Vivian Jenna—whether or not you use this name or Xavier—with the pronouns he, him, his. For this you may get into trouble. Conversely, if you have any dualistic sympathies at all—as I do—you may be torn about what to do, feeling simultaneous tugs toward truth and what counts these days as civility. And this, too, may get you (and me) into trouble: in legal affairs, I expect to continue to believe that sex is what matters—unless and until there is a generally accepted understanding of gender and there is reason to believe that this concept is in fact more important than sex. Which brings us in earnest to the law.

There appears to be nearly no case law on misnaming people outside the context of trans rights. Specifically, the courts have not ruled on whether repeatedly calling Kamala kuh-MAH-luh or Joshua Josh or Peter Simon or, for that matter, gratuitously referring to any of us as, say, Chattanooga, constitutes harassment. Microaggressions though they may be, I myself would hope these would not be considered more than nominal problems. After all, in the section on its webpage titled simply “Harassment,” the U.S. Equal Opportunity Employment Commission notes,

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Still, it is imaginable that the courts will decide that certain “wrong” names or mispronunciations are offensive to the point of harassment: one of the determinations in a 2008 case before the U.S. District Court for the Southern District of New York, EEOC v. Blockbuster, Inc., is that the former video giant engaged in racial discrimination against a Bangladeshi employee by, inter alia, “ask[ing] her to change her name because the customers could not pronounce it.”

This last case is an outlier. When it comes to the names and pronouns of trans people, however, the 2013 case Lusardi v. Dep’t of the Army strewed the ground with banana peels for anyone defending against charges of harassment. In Lusardi, the eeoc ruled that the army is

liable for subjecting Complainant [a transgender woman] to a hostile work environment based on sex by . . . allowing a team leader intentionally and repeatedly to refer to her by male names and pronouns . . . well after he was aware that Complainant’s gender identity was female.

The result of this is the more specific discussion of “Sexual Orientation and Gender Identity (sogi) Discrimination” found on the eeoc webpage—directly before a paragraph that is similar in content to the two sentences about “Harassment” quoted above, but more ominously phrased:

Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Suppose that someone of good faith is not a dualist or has doubts about dualism or even is a dualist but thinks it’s sex that matters, not gender. Suppose that someone, regardless of point of view, simply refuses to engage in compelled speech. Or suppose that someone has the sincerely held religious belief that “male and female created He them.” Can any or all of these people really run afoul of civil-rights law, especially at a time when the panoply of neopronouns is large and growing (ze, hir, hirs, hirself; ze, zir, zirs, zirself; ze, zan, zans, zanself; xe, xem, xyrs, xyrself; bun, bun, buns, bunself; fae, faer, faers, faerself; etc.); when some people change their pronouns willy-nilly; and when it is unclear what is even meant by “gender,” never mind, then, “transgender”?

And here’s a second question: can it really be the case that it is illegal to use a dispreferred name only when talking to or about transgender people? I am skeptical that this should be illegal for anyone, but if intent matters (which social justice warriors often deny) and if intentionally doing this is—or, rather, “could” be, as the eeoc gingerly puts it—illegal for some, then mustn’t it be illegal for all? As I have already suggested, it seems bizarre that, without changing their names legally, Peter could demand to be addressed as Jill but not as Jack and that Daisy could demand to be addressed as Jack but not as Jill.

These are live issues, ones that Bostock has intensified, as has the Biden administration, which on the president’s first day in office introduced gender-neutral pronouns on the White House contact page. Here is Justice Alito in his dissent, rightly worrying about the implications for freedom of speech: “After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.” And, indeed, current laws under which someone may be found liable who engages in misnaming or pronominal “errors” exist from New York City (“Prohibition on Discrimination based on Gender”) to California (“Deliberate Refusal to Use an Individual’s Self-identified Name, Pronoun or Title”); students in the Fairfax (Virginia) County Public Schools have “[t]he right to be called by chosen names and pronouns”; and undergraduates at Harvard were greeted at the start of this past fall term with official notice in mandatory “training” that use of “the wrong pronouns” is a form of “abuse.” It would be easy to give further examples.

It will not have escaped the reader’s notice that many of the cases under discussion lump personal names and pronouns together. As I have hinted, a major issue, but one to which not nearly enough attention has been given, is whether or not the law should in fact treat names and pronouns in the same way. I have already commented on the (frankly not wholly clear) relationship between these two categories from the perspective of a linguist. Let us turn now to the law, by considering several recent cases.

The first is already a cause célèbre: Meriwether v. Hartop, et al. In 2016, Shawnee State University issued the requirement that professors refer to students by their preferred pronouns; two years later, Nicholas Meriwether, a professor of philosophy, sued for infringement of First Amendment rights after his employer disciplined him for refusing to use the pronouns she, her, hers for a transgender student who has come to be known in the court documents as Jane Doe. In 2020, the U.S. District Court for the Southern District of Ohio, adopting the decision of the magistrate judge, dismissed Meriwether’s case, but he appealed to the U.S. Court of Appeals for the Sixth Circuit, which in 2021 ruled in his favor with a blistering decision by Judge Amul Thapar. The matter was concluded in April 2022 with a settlement that was intellectually, bureaucratically, and financially favorable to Meriwether.

It is instructive to read what Meriwether himself wrote about the issues in The Hill in 2020:

So why not simply call students what they wish to be called? I was willing to do so with this student and with any student who asks me to. His chosen name, though not his birth name, is feminine, and I was willing to call him this, since using a person’s proper name doesn’t imply anything about what one believes or what is true.

What I cannot do, however, is to speak in such a way that implies that a man is a woman or a woman is a man. In other words, to refer to a student in such a way that I imply something that is not true, that I know to be false, to effectively lie, and so violate my conscience as a philosopher and as a Christian.

The italics, which I have added, make a point that is certainly defensible. Indeed, others are making it, notably the Virginia high-school French teacher Peter Vlaming, who is currently suing the West Point School Board for firing him when he attempted to avoid pronouns altogether in speaking about a transgender student whose new preferred name he did, however, consistently use.

And then there is Adams v. School Board of St. John’s County, Florida, a suit brought by Drew (in full: Andrew) Adams, a transgender boy (now man) who was enrolled in Allen D. Nease High School in Ponte Vedra. On the last business day of 2022, the U.S. Court of Appeals for the Eleventh Circuit ruled against Adams, deciding that a public school is not in violation of the equal-protection clause of the Fourteenth Amendment or Title IX of the Education Amendments Act of 1972 when it designates separate bathrooms on the basis of sex. Among other reasons, Judge Barbara Lagoa’s majority opinion and special concurrence are notable for her attempt—imperfect, but clearly intentional—to avoid referring to the plaintiff either with pronouns or as Drew. Instead, she repeats the last name Adams over and over, in a way that does sometimes sound odd. It is likely that Adams’s fight will continue to the Supreme Court.

We can expect philosophers, linguists, and legal scholars to continue to argue fiercely over whether names and pronouns do or do not have the same truth value. Meanwhile, many claim no longer to know what a woman is—both the Cambridge Dictionary and Merriam-Webster changed their definition of woman in 2022, and there is a reason Dictionary.com named it “Word of the Year”—which adds yet another layer of complexity to the matter of when to use, and when not to use, the pronouns she, her, hers.

The final case I wish to mention is ongoing: Bugg v. Benson, et al., filed in the U.S. District Court for the District of Utah last August. Richard Bugg, a professor of theater at Southern Utah University, is suing for retaliation by his employer after he refused to use the pronouns they, them, their(s) for a nonbinary student, instead offering to use the student’s given “name or whatever singular pronoun or proper name [the student] preferred”—but then two or three times he slipped up and accidentally used feminine pronouns. Note that Bugg, like Meriwether, makes a distinction between names and pronouns, though in this case there is the added complication of a traditionally plural pronoun for a student who identifies as neither male nor female.

I object to making professors “submit to education.”

One of the sanctions imposed on Bugg was that he “submit to education about current views and opinions of English language and grammar experts and resources that using Gender-Neutral pronouns when referring to an individual is now considered grammatically correct.” In most cases, including this one, I object to making professors “submit to education,” but I do not believe that Bugg can succeed in the courts with the argument that singular they, them, their(s) is ungrammatical—though themself remains a particular stretch for most. There are, however, other reasons why he ought to prevail.

The Foundation for Individual Rights and Expression (fire) is paying attention. In the words of one of fire’s staff attorneys, Josh Bleisch (who appears to go by the shortened form of his given name),

Where professors can find reasonable alternatives to using a student’s preferred pronouns, such as using the student’s preferred name instead (as Bugg did), their college must allow for that reasonable accommodation. . . . The use of preferred and nonbinary gender pronouns is a matter of active public debate, and people have differing opinions on gender and gender expression. Compelling speech to align with a particularized viewpoint violates fundamental values of free speech and private conscience. Describing an individual with pronouns that the individual finds offensive can be part of a pattern of unlawful harassment or discrimination. But professors should not be punished for accidentally using a student’s incorrect pronouns, nor would the law on discrimination and harassment require they be punished. Colleges must provide breathing room for both professorial and student speech.

I have again added italics: “can be . . . unlawful harassment” and “should not be punished for accidentally using . . . incorrect pronouns.” In the years to come, it will be up to the courts to decide what constitutes pronominal harassment and the extent to which intent matters.

It is worth pointing out that the fullest legal and linguistic treatment of the issues I have been discussing come from the progressive Left. The most detailed account of the law on both names and pronouns is the 2021 California Law Review article “Misgendering” by Chan Tov McNamarah (“They/them pronouns”). Written with a deep distaste for anyone skeptical of misgendering, neopronouns, and the like, McNamarah’s study is long and extremely useful, but caveat lector. For example, McNamarah writes that “a look to employment discrimination case law provides a snapshot of how frequently nominal mispronunciation has been used to verbally harass minority employees.” To this claim there is a lengthy footnote, which cites six cases (supposedly exempli gratia, suggesting there are more). For some reason McNamarah does not mention the Blockbuster case about the Bangladeshi employee with the “difficult” name. But what is extraordinary—I am inclined to say academically dishonest—is that McNamarah does not even hint at the fact that in not one of the six cited cases was the ruling in favor of the plaintiff!

As for linguistics, I have already mentioned Dennis Baron’s book on pronouns. Baron is an outstanding linguist, and his work is generally authoritative. But sometimes he cannot help letting his politics get in the way. The section titled “Pushing back against Pronoun Choice” is contentious and legally unsophisticated, with claims such as that “the attack on pronouns comes from a tone-deaf majority keen on denying minority groups any shred of dignity, linguistic or otherwise.” He concludes that “Official support for nonbinary pronouns” is

no different from rules against the use of racial, ethnic, or religious slurs, swearing, or harassment . . . . Using such words in the workplace may not be illegal and it is not unconstitutional, but it may be in poor taste and it can still get you fired.

Baron appears to think the end of that last sentence is a good thing. I do not. It is time for centrists and those of the Right to present a sober and coherent account of the reasons to resist pronominal madness—an account that respects the rights of those who will not submit to compelled speech and those who do not conform to conventional gender norms.

A quarter of a century ago, I submitted a dissertation titled “Topics in Indo-European Personal Pronouns” to the Harvard Department of Linguistics in partial fulfillment of the requirements for a doctoral degree. A technical piece of work that goes into great detail on the deep background of *izwiz (the antecedent, you may recall, of our word you), it has never been of much interest to people other than specialists in historical/comparative linguistics. I used to give regular talks on language to general audiences and would invariably get a laugh at the start by saying that I’d written my dissertation on pronouns. But the third Wednesday of October has been declared International Pronouns Day and no one’s laughing now.

A Message from the Editors

Support our crucial work and join us in strengthening the bonds of civilization.

Your donation sustains our efforts to inspire joyous rediscoveries.

Show your support

This article originally appeared in The New Criterion, Volume 41 Number 7, on page 4
Copyright © 2023 The New Criterion | www.newcriterion.com
https://newcriterion.com/issues/2023/3/names-pronouns-the-law