BOISE – A new bill that would limit the use of preferred pronouns could open Idaho up to lawsuits if it makes its way through the Legislature, attorneys told the Idaho Statesman.
Rep. Ted Hill, R-Eagle, introduced a bill that would prohibit public employees from being required to refer to people by the pronouns they use and forbid teachers from calling their students by their requested pronouns without written permission from their parents. The bill addresses a “constitutional issue that has crept into our society where compelled speech becomes something that we have to honor,” Hill, the bill sponsor, told a legislative committee.
The bill aims to protect government employees from facing repercussions if they refuse to call people by anything other than their legal name or the pronoun connected to their biological sex. It would also let public employees sue if they face repercussions for refusing to use preferred pronouns.
But the legislation raised concerns over whether it is constitutional. Jodi Nafzger, the Title IX coordinator for the College of Idaho, told the Idaho Statesman by phone that Hill’s bill, and others like it, raise “distinct constitutional questions” around free speech and due process.
The ACLU of Idaho told the Statesman in a statement that the bill “likely violates constitutional and statutory protections.”
“While people may hold a variety of beliefs about transgender people, the First Amendment does not grant school officials a free speech right to refuse to address transgender students by the pronouns consistent with their gender identity,” the ACLU said.
Issue will ‘land squarely’ in U.S. Supreme Court
Versions of the bill to limit pronoun use have already become law in many other states, and lawsuits around the country indicate that fights over parental rights, gender identity discrimination and employee rights could lead to split appeals court decisions and ultimately a U.S. Supreme Court case. Hill said he borrowed language for his bill from legislation passed in other states.
Tensions between discrimination and free speech rights continue to play out in the Supreme Court. In a 2020 ruling, justices clarified that sex discrimination includes sexual orientation and gender identity discrimination, but in 2023, they found that some professions have a First Amendment right to express their views, even if they are discriminatory.
Though Nafzger said that courts so far have generally found that misgendering someone does not itself rise to discrimination, it can become discrimination if combined with other forms of disrespect or targeting. Drafted rules about discrimination in education from President Joe Biden’s administration are also expected to expand protections for transgender people, which include use of preferred pronouns.
A case over Hill’s bill or another like it is “going to eventually land squarely in front of the U.S. Supreme Court,” she said.
Sydney Madsen, a Pocatello resident who’s intersex, told the Statesman she thinks the bill contradicts itself.
“It aims to protect the constitutional right to free speech of all people in the state of Idaho while limiting the ways that people can express themselves verbally,” she said, restricting the expression of queer people in particular.
Madsen said lawmakers should recognize that the intended sexual binary behind the bill already creates problems for people like her. Intersex people are born with characteristics of both sexes. Though Madsen has no preference on pronouns, she said she doesn’t identify as female and that neither sex identifier applies to her.
Pressure to use different pronouns, lawmaker says
Rep. Mark Stinson, serving as a substitute for Rep. Colin Nash, D-Boise, asked Hill whether his bill would be “in contradiction to any existing laws” and whether he expects the law to be challenged in court. Hill said he’s sure it would be.
Hill said teachers in schools and law enforcement are being “pressured” to use particular pronouns but didn’t cite specific examples of retribution. He said people can use the pronouns they want but that it shouldn’t be “compulsory” for others to use them.
Hill compared new forms of pronoun use to asking someone to call him “your lordship,” to citizens using “comrade” in the Soviet Union, and to people saying, “Heil Hitler.”
“There’s your compelled speech, and this starts to get into that route,” he said. “We can recognize voluntarily, sure, but I shouldn’t be forced to say anything that I don’t want to say.”