And Don’t Call Me Shirley (Unless I Demand It)
The People’s Republic of Massachusetts, not content to mutilate the English language or enlist businesses in its plan to normalize mental illness, has decided to repeal the First Amendment as well. From UCLA law professor Eugene Volokh in the Washington Post:
From the official Massachusetts Commission Against Discrimination’s Gender Identity Guidance, just released last week:
“Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.”
Now, churches hold events “open to the general public” all the time — it’s often how they seek new converts. And even church “secular events,” which I take it means events that don’t involve overt worship, are generally viewed by the church as part of its ministry, and certainly as a means of the church modeling what it believes to be religiously sound behavior.
My guess is that most churches would not turn someone away from a generally open spaghetti supper. (Though I think churches should be free to exclude transgender attendees — just as they should be free to hold men-only and women-only events or, for that matter, black-only events, white-only events, events only for ethnic Jews, and the like — that is a question for another day.)
But some religious leaders, as well as the church employees and volunteers, may refuse to use pronouns that they believe are inconsistent with God’s plan as revealed by anatomy.
My guess is that Prof. Volokh is correct about this. I know I’m not about to start using pronouns as the commissars dictate, and I’m sure lots of my colleagues in the Bay State agree.
Under Massachusetts law, refusing to use a transgender person’s preferred pronoun would be punishable discrimination. (At least this is true of “he” or “she” — I saw nothing in the document about “ze” and other newly made-up pronouns.) The Massachusetts document I linked to makes that clear in the employment context, and it also makes clear that the antidiscrimination law rules apply to places of public accommodations (including churches, in “secular events” “open to the public”) just as much as to employment.
Indeed, a church might be liable even for statements by its congregants (and not just its volunteers, who are acting as agents) that are critical of transgender people. Tolerating such remarks is generally seen as allowing a “hostile environment,” and therefore “harassment.” Indeed, the statement I linked to specifically encourages people to “prohibit derogatory comments or jokes about transgender persons from employees, clients, vendors and any others, and promptly investigate and discipline persons who engage in discriminatory conduct” (emphasis added). But that’s not just encouragement; it simply reflects hostile work environment harassment law, which has long required employers to restrict derogatory speech by clients, to prevent “hostile environments.” See 29 C.F.R. § 1604.11. The same logic applies for places of public accommodation, which Massachusetts says can include churches.
If you want to take a look at the document about which Prof. Volokh is writing, you can find it here. This is the relevant part, found under the section, “Places of Public Accommodation”:
A place of public accommodation is defined as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, § 92A….
Under G.L. c. 272, § 98, places of public accommodation may not discriminate against, or restrict a person from services because of that person’s gender identity. For example, a hotel or motel may not refuse to book a room for a person because of the person’s gender identity. Even a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public. All persons, regardless of gender identity, shall have the right to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation. For example, if it is a supermarket’s practice to bag the customers’ groceries, the store may not refuse to bag a person’s groceries because of the customer’s gender identity. Moreover, it is a violation of the law for any individual to aid or incite another in making a distinction, discriminating against or restricting an individual from a place of public accommodation on the basis of gender identity.
Farther down, under “Best Practices,” a section which is meant to help businesses and other “public accommodations” to avoid running afoul of the law, we read this:
The Commission encourages employers, housing providers, places of public accommodation and all entities subject to the law to foster an inclusive and welcoming environment by following best practices recommended by the American Bar Association22 which may include the following:
•Prohibit derogatory comments or jokes about transgender persons from employees, clients, vendors and any others, and promptly investigate and discipline persons who engage in discriminatory conduct;
•Use names, pronouns, and gender-related terms appropriate to employee’s stated gender identity in communications with employee and with others;
•Provide the public and employees access to any sex-segregated facility, i.e. bathrooms, locker room facilities, based on the employee’s stated gender identity; ...
When the controversy over allowing mentally ill men and boys in women’s and girls restrooms in schools and businesses broke out last year, we were quickly assured that churches would be exempt from such requirements. First Amendment and all that. Unless the courts overturn it, that’s no longer the case in Massachusetts, and will undoubtedly be coming to a church near you before long, once the federal government decides to get into the act.
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