When Free Speech Turns Into Harassment, It Isn't Okay or Legal

02/06/2017 03:13 pm ET Updated Feb 07, 2018

Why are gender pronouns being forced into law? originally appeared on Quora - the place to gain and share knowledge, empowering people to learn from others and better understand the world.

Answer by Jae Alexis Lee, Trans Woman, Technology Enthusiast, Martial Arts Instructor, long time manager, on Quora:

Why are gender pronouns being forced into law? This is a distortion of reality that's popular in some social circles and it really, really bugs me. Let me explain, we'll  start with the basics: Harassment isn't okay. We good with that? I hope so because if not there's no hope for the rest of this conversation. Harassment isn't okay.

What constitutes harassment? Well, lots of things. Anyone who's ever been a manager for a sufficiently large corporation has probably sat through at least one mandatory training session about what the company considers harassment, what the law considers harassment, and what they're expected to do about it. We'll skip the minutia and leave it at high, high-level concepts for now: Harassment can include physical behavior (inappropriate touching, hitting, etc.), verbal behavior (teasing, lewd comments, etc.) and direct actions (work assignments, dismissals or threats of termination, etc.) Got it? 1,000 foot level.

Let's descend a bit to talk about verbal harassment. Some things would be considered harassment regardless of the gender, ethnicity, religion or orientation of the target. If I make a point of loudly addressing one of my staff as "Dumb F***" and pile onto that with abusive language every time I give them instructions both in private or publicly, that's not okay. (All right, I'm wandering into hostile work environment land a little bit, but hang with me, we're not going to get sucked into that level of minutia here.) If that member of my staff quits and files for unemployment, I promise you, I'm going to have a hard time explaining my behavior to a judge on that.

Some forms of verbal harassment are unique to traditionally oppressed groups. Racial slurs, sexist remarks, religious slurs. We've got a list of things that as an employer, it's not okay to call your employees. If those employees complain and we keep doing it anyway, that's explicitly not okay.

So, now we're looking at trans people, a historically oppressed minority that studies have demonstrated face significant rates of harassment and discrimination. Like many other groups, there are collections of slurs and methods of being verbally abusive that are specific to the group. In areas where we talk about gender identity being a protected class, using trans-specific verbally abusive language would be forbidden in the same contexts that using racial slurs would be prohibited or making lewd sexual comments would be forbidden.

Still with me? Good. When it comes to trans people, in addition to slurs like shemale and tranny, denying a trans person's identity can constitute harassment. Terms commonly used in the trans community are misgendering (referring to a person with incorrect pronouns, or other gendered parts of speech), and deadnaming (using a trans person's pre-transition name.) Same as using racial slurs or making lewd sexual comments, this kind of behavior can have significant negative impact to the person on the receiving end of it.

So, Jae, what you're telling me is that if I screw up and call a trans man 'she' it's the same thing as if I asked my receptionist to show me her tits?

I get this a lot. No, not that exact question, but the idea that people are afraid that screwing up will get them in legal trouble.

This isn't about verbal stumbles. In general, when we're talking about non-discrimination legislation that creates protection for gender identity what we're doing is placing behavior that is explicitly anti-trans on the same level as behavior that is specifically anti-any other protected class.

Verbal stumbles happen, we all know that. Show of hands from everyone who's never said she when they meant to say he? Who's never opened their mouth to mention a person by name only to have the wrong name come out? It happens, and in general, we make a quick comment/apology about it, and then we move on.

There's no reason to feel like a law that protects trans people would be different in application. In any legal case we're going to be looking at severity (saying 'show me your tits or you're fired' is on a different level than calling someone the 'company slut' where it can be overheard, both are bad, one is worse), there's going to be an examination of frequency, of intent, and of circumstances.

When you dig into harassment in the workplace, you learn that there's a whole lot of gray. We can't write laws that spell out every word that can or can't be used, or every phrase or how often people can or can't say something. Instead, we have a framework of guidelines that the justice system can use to assess the situation.

So, I get that Jae, but... are you saying this is just for employers and employees?

No, not at all. Looking at from a corporate perspective is easy for me because I've been in management for so long, but it's also an approachable lens for a broad swath of people because most of us have had jobs at one point or another.

This sort of thing applies to a large number of relationships where there is an institutional power differential. It applies from employer to employee where we talk about things regarding hostile workplaces, harassment and a host of other employment related things. It also applies when we're talking about how law enforcement treats suspects. In investigations of bias and excessive force, the use of slurs on the part of the LEO can be employed as part of proving that an officer acted inappropriately due to bias. We look at this in relationships between teachers and students, especially in instances where there is a reason to suspect that grading which may be subjective has been unfair towards minority students, or that classroom environments were too hostile for students to be able to engage and learn. We talk about this in the contexts of landlords and tenants, business owners and clients and on and on and on.

Fundamentally, harassment and discrimination are issues we face in the modern world. We have laws to address these things because harassment and discrimination aren't okay. Legislation that adds gender identity to the list of protected classes aren't enforcing an Orwellian form of thought control on the population, but they recognize that trans people are frequently targeted for harassment and discrimination. Some laws make explicit note that misgendering and deadnaming are specific methods by which people harass and make transgender people feel unwelcome or unsafe.

But Jae, what about free speech?

You still have freedom of expression, as much as you ever did. It hasn't gone away. Want to call me a delusional dude on your blog? Go for it, knock yourself out. Want to demand you have the right to call Caitlyn Jenner Bruce? Be my guest. It isn't an issue until you do so in a way that is specifically harmful to another person. If you're my boss, and you call me 'he' or 'it' every time you talk about me at work, then you're going to get a complaint from me letting you know that I'm not okay with it. I'm going to copy HR on the complaint, and if it keeps happening then things escalate as appropriate for the situation (that may mean internal escalations to my boss's boss, that might entail talking to an employment attorney, again, situational.)

Speech has consequences, and in general, our rights stop when our method of exercising them hurts other people. You're welcome to say or think whatever you want, but in some situations, there are things you shouldn't say because of the harm it will cause and if you do cause damage with what you say then you may be held accountable for the harm you caused.

That's what this is about. Not about Orwellian thought police, not about an out of control radical left, but about recognizing that the trans population is a minority that faces significant harassment and discrimination. That harassment and discrimination aren't okay, and that deliberately misgendering or deadnaming a trans person may be a form of verbal abuse that would be actionable under appropriate laws regarding specific forms of verbal abuse.

Got it? Good, now go be nice to each other, class dismissed.

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