Have you ever heard of compelled speech and laws on pronouns?
A couple of days ago, I introduced to my readers this formula by American legal scholar and economist Richard Posner. Economists do not care as much about the nature of rights, including the right to free speech, as about economic efficiency. A good law restricting certain expressions is good as long as the perceived harms of the expressions are greater than the costs of suppressing them. This seemingly complex formula isn’t all that complex if you understand the reasoning:
I want to embark on a more challenging and contentious endeavor this time, which is to study the economic efficiency of laws regulating the use of (gender) pronouns.
As you may already know, some US states such as New York and most of Canada have added pronoun laws in their human rights codes or anti-discrimination laws. Whereas “misgendering” people–aka not addressing people by their preferred pronouns–by mistake is not discrimination, to do so repeatedly or purposefully is now considered discrimination based on gender. People have been sacked, fined, or punished in various ways.
I can only imagine how frustrating it is for trans people not to have their gender identities recognized by society. As an educator who embrace diversity, I am more than happy to accommodate anyone’s choice of pronouns.
Since diversity also includes the diversity of opinions, I do not see the need to suppress discussion on what might be a delicate matter. Some leftwing professors are adamant that gender pronouns are not up for debate, just as human rights are not up for debate. This cannot be more wrong. Nothing is really untouchable: if something is considered to be “not up for debate,” then that very thing would be prone to be abused by governments. Free speech is a fundamental right and principle; yet we always discuss the limits of free speech, right?
***The intellectual laziness of these educated professors (including law professors) who say even discussing the laws on pronouns is a breach of trans people’s human rights is revealed in glaringly bad analogies they made. One example is the comparison of gender pronouns to food labels/health warnings, a very generally acceptable form of compelled speech. How do we go about applying Posner’s formula to this type of speech?
On the right side of the formula, the harms of no food labels showing nutritional values of food would be an uninformed public about the nutritional makeup of foods they want to buy. Food companies might even put misleading information on packages. The harms to consumers whose health depends on carefully-monitored diets would be grave. They harms, both immediate and medium/long-term, would likely happen.
On the left side of the formula, the costs of banning alternative/misleading information would be minimal. The enforcement/legal-error costs would also be low as the enforcement process is relatively straightforward. Because the perceived harms of no labels are clearly greater than the costs of the regulation/values lost, the regulation mandating food labels is therefore efficient and good.
One should note that the food labels and health warnings are supposedly substantiated by scientific facts and are not based upon opinions. Unlike companies, ordinary customers hardly would have time and resources to find out all the relevant information before purchasing the food they want. No food labels would place an unnecessary burden on the public aside from causing harms to consumers.
It should also be added that food labels and health warnings are commercial speech made by companies primarily for the sake of the public and for safeguarding their interests, not not for the sake of self expression or self development as in the speech of an individual. Companies arguably have identities too, but the self development is less of a concern for a company than for an individual. Thus, even if these are compelled speech, they are generally accepted by society for very good reasons.
***
Those analogies are clearly lazy as they oversimplify the complex questions raised by new pronouns. The application of the formula to gender pronoun laws is not straightforward and sheds light on the complexity of the issue. The laws may seem efficient: the harms of misgendering including emotional trauma to transgender people and, as some activists argue, the lack of recognition of heir identity and real discrimination in housing and the workplace. The harms are grave, immediate, and likely. What values are lost? The values of misgendering are clearly low, as are the values of staying silent, if transgenderism is backed by science. The harms of no law clearly exceed the values/costs of the law.
Reality may not be that simple. The real harms need not be as severe as predicted. If there is no law mandating the use of pronouns, most people may still be willing to go by trans people’s preferred pronouns in a civil society. The gravity of harm may be smaller, as is its probability–let’s put it this way: the laws might not make a noticeable marginal reduction in social harms.
The loss in social values due to the laws may be larger than the activists might have foreseen. People might be much less willing to express their opinions on transgenderism, or even publish research on this issue that challenges mainstream activist thinking. The enforcement cost/legal-error costs could be high: it can be really challenging to determine whether any act of misgendering was deliberate and should be punished. Unjust punishment can become a common occurrence. The harms of no regulation may indeed be smaller than the costs of regulation. Activists, or those keen on virtue-signaling, have become highly intolerant of opposing views.
Such laws would only make the situation worse, while having marginal benefits.
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Reasonable, intelligent people disagree on many contentious issues. In western democracies, it is appalling how some self-proclaimed educated people/scholars profess to know everything about this matter and shut down others’ opinions by name-calling people who may be perfectly willing to go by the preferred pronouns. The distressing breakdown of dialogues and rising authoritarianism convinced me that western society may not be heading in the right direction.