New York is recognized as, arguably, one of the most progressive states in the United States. In fact, the state boasts a law that prohibits the discrimination of people for their pronouns — one that, if violated, could end in a hefty fine.
We're talking civil penalties up to $125,000 for violations, as well as up to $250,000 for violations that are the result of "willful, wanton or malicious conduct" if people refuse to use others' self-identified pronouns, names or titles.
So what is New York's pronoun law? Here's what should you know about it.
The New York City Commission on Human Rights has proposed "Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression," known as Local Law No. 3 (2002); N.Y.C. Admin. Code § 8-102(23).
The document serves as the Commission’s legal enforcement guidance on the New York City Human Rights Law (NYCHRL)'s protections, as they apply to discrimination based on gender, gender identity and gender expression, which all constitute gender discrimination under the NYCHRL. The document does not intend to serve as a complete list of all forms of gender-based discrimination claims under the NYCHRL, however.
That said, the document reads as such:
"The New York City Human Rights Law ('NYCHRL') prohibits discrimination in employment, public accommodations, and housing. It also prohibits discriminatory harassment and bias-based profiling by law enforcement. The NYCHRL, pursuant to the 2005 Civil Rights Restoration Act, must be construed 'independently from similar or identical provisions of New York state or federal statutes,' such that 'similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.'
"The New York City Commission on Human Rights (the 'Commission') is the City agency charged with enforcing the NYCHRL. People interested in vindicating their rights under the NYCHRL can choose to file a complaint with the Commission’s Law Enforcement Bureau within one (1) year of the discriminatory act or, in the case of gender-based harassment, within three (3) years of the discriminatory act. Alternatively, a complaint can be filed in court within three (3) years of the discriminatory act.
"The NYCHRL prohibits discrimination by most employers, housing providers, and public accommodations on the basis of gender. The term gender 'shall include actual or perceived sex, gender identity, and gender expression including a person's actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.”
Under the NYCHRL, employers and covered entities (in the areas of employment, public accommodations and housing) are required to use the name, pronouns and title (e.g. Ms./Mrs./Mr./Mx.) with which a person self-identifies, regardless of that person's sex assigned at birth or the sex indicated on that person's identification, or that person's anatomical makeup, gender, appearance or otherwise. Failing to use pronouns with which a person self-identifies can constitute as discrimination under the law.
"All people, including employees, tenants, customers and participants in programs, have the right to use and have others use their name and pronouns regardless of whether they have identification in that name or have obtained a court-ordered name change, except in very limited circumstances where certain federal, state or local laws require otherwise (e.g., for purposes of employment eligibility verification with the federal government)," according to NYC.gov.
That said, asking someone "in good-faith" for their name and/or gender pronouns is not a violation of the NYCHRL. And, because many people use non-binary or non-conforming gender pronouns (such as they/them/theirs or ze/hir), asking is sometimes the only way to know someone's pronouns. Some entities may avoid NYCHRL violations by creating policies of asking everyone for their pronouns in updated systems, intake forms and other questionnaires that allow people to self-identify.
Of course, it's important to note that since, according to the City, "refusal to use a transgender employee’s preferred name, pronoun or title may constitute unlawful gender-based harassment," harassment is a keyword of which employers should take note. Harassment law requires employers to prevent harassment by co-workers and patrons — not just themselves.
Some examples of violations of New York's pronoun law include the following.
The New York City Council passed the Transgender Rights Bill in 2002 in order to expand the scope of gender-based protections that the NYCHRL guarantees, and in order to ensure the protection of people whose "gender and self-image do not fully accord with the legal sex assigned to them at birth," since the council recognizes that protection from discrimination is "very often a matter of life and death."
As such, the amendment made clear that "gender-based discrimination — including, but not limited to, discrimination based on a person’s actual or perceived sex, and discrimination based on a person’s gender identity, self-image, appearance, behavior or expression — constitutes a violation of the City’s Human Rights Law.”
Flash forward to 2018, and the City Council amended the definition of "gender" in the NYCHRL. Now, it reflects an even broader and far more inclusive understanding of gender.
Mayor Bill de Blasio also signed a provision into a law in 2018, making New York City the fifth place to allow gender-neutral driver licenses. Since 2014, the New York City law has also allowed nonbinary and gender-nonconforming people to change their birth certificates from the M or F designation that they were assigned at their birth to X with a personal affidavit — without any required documentation from a doctor.
While there's still a lot of work to be done, these are all steps in the right direction to protect all people's identities.
New York's pronoun law is certainly progressive, and it helps to protect people who use non-binary and non-conforming pronouns, especially. But, of course, there's controversy surrounding the law.
"So people can basically force us — on pain of massive legal liability — to say what they want us to say, whether or not we want to endorse the political message associated with that term, and whether or not we think it’s a lie," writes the Washington Post contributor, Eugene Volokh. "We have to use 'ze,' a made-up word that carries an obvious political connotation (endorsement of the 'non-binary' view of gender). We have to call people 'him' and 'her' even if we believe that people’s genders are determined by their biological sex and not by their self-perceptions — perceptions that, by the way, can rapidly change, for those who are 'gender-fluid' — and that using terms tied to self-perception is basically a lie."
Some people like Volokh believe that New York is requiring people to "actually say words that convey a message of approval of the view that gender is a matter of self-perception rather than anatomy, and that, as to 'ze,' were deliberately created to convey that a message." Their objection is to being forced to "express that view," Volokh explains.
"I think we should all feel uncomfortable about government regulators forcing people to say things that convey and support the government’s ideology about gender," he writes.
AnnaMarie Houlis is a feminist, a freelance journalist and an adventure aficionado with an affinity for impulsive solo travel. She spends her days writing about women’s empowerment from around the world. You can follow her work on her blog, HerReport.org, and follow her journeys on Instagram @her_report, Twitter @herreportand Facebook.
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