I will concede the point that the line between legitimate and pathological is challenging and fuzzy. However, I think it's fair to say that in cases like that of Napoleon Bonaparte, where a person's identity is impossible due to contradicting known scientific laws of nature, we need not and should not abide by those identities, since they are observably provable as impossible and insane. There is a definite grey area, and it's not as simple as I may have implied, but outside of these corner cases, subjective identity applies.
This is a treacherous line of argument for your position, considering how common is the sentiment that transgendered identities are against the "laws of nature". One could very easily counter-argue it's observably provable that a trans woman is not female: there are certain physiological qualifications she clearly lacks. For a trans woman to rebut this, she has to redefine "femaleness" as a psychological construct rather than a biological property. And if she can do that for femaleness, why can't our would-be Napoleon do that for Napoleon-ness?
And as you say, the Napoleon delusion is an extreme case. Things only get fuzzier the more you look at them. Are Mormons and Unitarians Christians? Are illegal immigrants Americans? Is Rachel Dolezal black?
In short: Free speech can and should protect the communication of any ideas, but there is no reason it should protect needlessly offensive methods of communication.
Firstly, if the law only protects speech that is determined to be "needful", then that's not free speech. Secondly, this determination is subjective. A religious conservative judge and an LGBT progressive judge are going to have wildly different ideas about which speech is offensive. And if we're going down this route, then the conservative's opinion can't simply be disregarded: when Christians get offended by blasphemy, those feelings are real too.
The right to 'live by your opinions' is not universal; a radical religious terrorist may believe that acts of terror are right, but if they commit them they are justly punished by law.
The difference being that acts of terror are explicitly defined in the law as criminal, whereas acts of speech are explicitly defined in the law as protected.
Sure, but Bob doesn't care whether Alice expresses that desire. Bob's objective here is not "prevent Alice from asking me to say "she"". The only speech which is in dispute is Bob's.
If Alice doesn't express that desire, whether verbally or through presentation, then Bob is blameless in using male pronouns to refer to a person apparently presenting as male. We all use male pronouns to refer to apparent men, all the time. And most of the time, those apparent men are in fact men, and have no desire to be referred to in any other way. Call me "he", and I'm certainly not going to object to it. So Alice's desire and her expression of that desire are critical components of this dispute. If Alice doesn't have the desire, there is no dispute. If Alice doesn't express the desire, there is no dispute. A state without the First Amendment could try to resolve the dispute by punishing Alice for having or expressing the desire, just as it could try to resolve it by punishing Bob for using the undesired pronouns. The First Amendment says that state isn't going to try for either resolution. Which is neutrality.
Beyond that, in practice, I think Bob cares a lot about whether Alice expresses that desire, and his objective probably is to "prevent Alice from asking me to say 'she' ", and then some. Transphobia is about hostility towards nonconformity. In the big picture, what Bob wants is for Alice to "act normal", given his own definition of "normal": he wants Alice to use "he", to change her name back to "Al", to wear pants, and so on. Ignoring that big picture, and focusing on the single narrow slice of the dispute that is Bob's pronoun usage, is going to be misleading. It's like looking at a single action in the Great Hypothetical Anglo-French War where the Britons are assaulting a French position and concluding that Switzerland's neutrality is pro-English because they're letting them do that one thing.
What exactly are you afraid they'll do? Make you use a really long annoying word to refer to them? This isn't just a word; it's their identity, and any person has the right to decide their own identity. Saying someone can't choose pronouns isn't far off from saying they can't trust themselves to determine their identity.
It's a little trickier than that. Some people are narcissistic or delusional. The guy who thinks he's Napoleon Bonaparte? He doesn't need us to trust him; he needs us to help him. Drawing the line between "legitimate" identities and "pathological" ones can be a challenge.
Again, so you say. I think it would depend, certainly with regards to whether you get actually fired. 'Unwelcome conduct' surely does not mean 'anything even that could be taken to be even slightly disparaging'.
Maybe you don't get this as an Australian, but in America the N-word is more than just "slightly disparaging".
Isn't that a case of the government telling me how I can address other people? And further a case where the people I'm addressing have a say in how I'm allowed to address them?
If Bob wants to call Alice "he" and Alice wants to be called "she", the only speech that's relevant to that outcome is Bob's speech.
...plus Alice's desire to be called that. If Alice didn't mind being called "he", there would be no problem. This is a question of her conscience, which is a First Amendment issue per se. And for this situation to become a dispute, then Alice needs to express that desire, which is speech in the ordinary sense of the term.
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I'm a bit confused by this reply. What does this have to do with the question of what pronouns people should use? You don't need to use violence to be able to say the pronoun you want. No one is beating up trans people so that they can call them by a different pronoun, that doesn't even make sense.
Transphobia doesn't make sense, but yeah, I'm pretty damn sure people are beating up trans people for exactly that reason.
I also don't understand what you're getting at here. The trans people want to be referred to by one set of pronouns, and their opponents want to use another. Using a pronoun is speech. Being referred to by a pronoun is not speech.
I don't know how to put it any more plainly: "Please refer to me as 'she' " is speech. Gender presentation is self-expression. Personal identity is protected by freedom of conscience and freedom of association.
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The fact that both sides are capable of violence is also irrelevant. One side's objective does not require violence to achieve it, so prohibiting that side from using violence is meaningless.
*looks at the amount of violence committed against trans people*
Are you sure that's the argument you want to go with?
I'm not sure I understand what you mean here. What acts are both sides performing? It seems to me that there is one act - the speech.
Both sides are engaging in speech. The trans people are using one set of pronouns, and their opponents are using another. The trans people are requesting that others use their preferred set of pronouns, and their opponents are declining. This is not a one-way street.
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Once an entity has a monopoly on violence, non-intervention is not an option - it has already intervened by forbidding a subset of the actions available to those involved in a dispute.
Using violence as a resolution to any dispute over speech is beyond the pale, state or no state. And even if it were not, the state is still not taking a side by disallowing violence, as both sides are capable of violence and both are forbidden from using it.
If it pledges not to use violence to stop certain acts, then it has taken a side in favor of those acts.
Both sides are performing acts, and the state is pledging not to stop any of them. Not just in this particular dispute, but as a blanket policy going back hundreds of years.
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Similarly, we go out of our way to protect the right to free speech - we give legal protection to people who want to say awful things. We even put it right at the top of our bill of rights. That's not "neutral" - that's taking sides with the people who want to say awful things over the people who don't want awful things said about them.
If that's how you conceptualize the conflict, sure, but if you conceptualize the conflict that way, then you have already taken a side, and your argument is question-begging. Conceptualize it a different way -- say, "these trans people are misrepresenting their gender, and the government is just letting them do it!" -- and it could just as easily be said that the nonintervention policy favors the other side. To both parties invested in a dispute, neutrality often looks like antagonism.
Britain and France go to war. Switzerland stays out of it. By not helping Britain, is Switzerland taking sides with the champions of French sovereignty and pride? Or by not helping France, is it taking sides with the last line of defense against Gallic arrogance? You could ask questions about the nature of the conflict, which country is the aggressor, who benefits most from Swiss nonintervention, and so on. But answering those questions are roundabout ways of picking a side, and Switzerland has decided as a matter of policy that it's simply not going to do that.
It's not just that sticking to the First Amendment is the neutral position in this particular case. The First Amendment -- indeed, the entire political philosophy of liberalism -- is fundamentally a doctrine of principled neutrality, just like Switzerland's foreign policy. It's the state declaring that (peaceful) disputes over words and ideas and convictions are categorically Not Its Problem, any more than the Chunnel or right-hand driving or whatever Britain and France are fighting over this time is Switzerland's problem. And saying that inaction in the dispute amounts to the state picking a winner is more than just begging the question by conceptualizing the dispute with a certain slant. It's resting on the hidden premise that this is a domain in which the state has some arbitrating authority, even though the state itself is explicitly saying that it doesn't. It's as if the Britons were outraged by Swiss refusal to join the war on their side because they expect and accept Switzerland as playing the deciding role in such wars, even though the Swiss haven't done anything like that since approximately the advent of gunpowder.
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If you have one group who finds it intolerable to be referred to by what they consider the wrong pronouns, and another group that finds it intolerable to refer to others by what they consider the wrong pronouns, you're going to have to give legal weight to one position or the other. That doesn't mean you're declaring the other "automatically immoral" - laws don't determine what is and is not moral.
If you don't want to give legal backing to the people who demand to be preferred to by their preferred pronouns, then you're giving legal sanction to the people who don't want to use those pronouns. There is no neutral position where we simply accept everyone's position equally.
I think your use of the term "legal sanction", though technically accurate, may connote a stronger endorsement than the law is actually giving. In fact legal nonintervention is the neutral position: "We're not picking winners here, just work it out like adults (because there are laws against harassment and violence)".
We've got one group in America who finds Hillary Clinton intolerable, and another group who finds Donald Trump intolerable -- the law gives legal sanction to people who support and vote for Trump, because of course it is legal to do those things, but it'd be ridiculous to say that the law is weighted in favor of Trump or otherwise not neutral.
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And as you say, the Napoleon delusion is an extreme case. Things only get fuzzier the more you look at them. Are Mormons and Unitarians Christians? Are illegal immigrants Americans? Is Rachel Dolezal black?
Firstly, if the law only protects speech that is determined to be "needful", then that's not free speech. Secondly, this determination is subjective. A religious conservative judge and an LGBT progressive judge are going to have wildly different ideas about which speech is offensive. And if we're going down this route, then the conservative's opinion can't simply be disregarded: when Christians get offended by blasphemy, those feelings are real too.
The difference being that acts of terror are explicitly defined in the law as criminal, whereas acts of speech are explicitly defined in the law as protected.
candidus inperti; si nil, his utere mecum.
Beyond that, in practice, I think Bob cares a lot about whether Alice expresses that desire, and his objective probably is to "prevent Alice from asking me to say 'she' ", and then some. Transphobia is about hostility towards nonconformity. In the big picture, what Bob wants is for Alice to "act normal", given his own definition of "normal": he wants Alice to use "he", to change her name back to "Al", to wear pants, and so on. Ignoring that big picture, and focusing on the single narrow slice of the dispute that is Bob's pronoun usage, is going to be misleading. It's like looking at a single action in the Great Hypothetical Anglo-French War where the Britons are assaulting a French position and concluding that Switzerland's neutrality is pro-English because they're letting them do that one thing.
It's a little trickier than that. Some people are narcissistic or delusional. The guy who thinks he's Napoleon Bonaparte? He doesn't need us to trust him; he needs us to help him. Drawing the line between "legitimate" identities and "pathological" ones can be a challenge.
Maybe you don't get this as an Australian, but in America the N-word is more than just "slightly disparaging".
The government is walking a very fine line here.
candidus inperti; si nil, his utere mecum.
candidus inperti; si nil, his utere mecum.
I don't know how to put it any more plainly: "Please refer to me as 'she' " is speech. Gender presentation is self-expression. Personal identity is protected by freedom of conscience and freedom of association.
candidus inperti; si nil, his utere mecum.
Are you sure that's the argument you want to go with?
Both sides are engaging in speech. The trans people are using one set of pronouns, and their opponents are using another. The trans people are requesting that others use their preferred set of pronouns, and their opponents are declining. This is not a one-way street.
candidus inperti; si nil, his utere mecum.
Both sides are performing acts, and the state is pledging not to stop any of them. Not just in this particular dispute, but as a blanket policy going back hundreds of years.
candidus inperti; si nil, his utere mecum.
Britain and France go to war. Switzerland stays out of it. By not helping Britain, is Switzerland taking sides with the champions of French sovereignty and pride? Or by not helping France, is it taking sides with the last line of defense against Gallic arrogance? You could ask questions about the nature of the conflict, which country is the aggressor, who benefits most from Swiss nonintervention, and so on. But answering those questions are roundabout ways of picking a side, and Switzerland has decided as a matter of policy that it's simply not going to do that.
It's not just that sticking to the First Amendment is the neutral position in this particular case. The First Amendment -- indeed, the entire political philosophy of liberalism -- is fundamentally a doctrine of principled neutrality, just like Switzerland's foreign policy. It's the state declaring that (peaceful) disputes over words and ideas and convictions are categorically Not Its Problem, any more than the Chunnel or right-hand driving or whatever Britain and France are fighting over this time is Switzerland's problem. And saying that inaction in the dispute amounts to the state picking a winner is more than just begging the question by conceptualizing the dispute with a certain slant. It's resting on the hidden premise that this is a domain in which the state has some arbitrating authority, even though the state itself is explicitly saying that it doesn't. It's as if the Britons were outraged by Swiss refusal to join the war on their side because they expect and accept Switzerland as playing the deciding role in such wars, even though the Swiss haven't done anything like that since approximately the advent of gunpowder.
candidus inperti; si nil, his utere mecum.
I think your use of the term "legal sanction", though technically accurate, may connote a stronger endorsement than the law is actually giving. In fact legal nonintervention is the neutral position: "We're not picking winners here, just work it out like adults (because there are laws against harassment and violence)".
We've got one group in America who finds Hillary Clinton intolerable, and another group who finds Donald Trump intolerable -- the law gives legal sanction to people who support and vote for Trump, because of course it is legal to do those things, but it'd be ridiculous to say that the law is weighted in favor of Trump or otherwise not neutral.
candidus inperti; si nil, his utere mecum.