Misgendering

96 Pages Posted: 23 Sep 2020 Last revised: 31 Dec 2021

Date Written: August 25, 2020

Abstract

Pronouns are en vogue. Not long ago, introductions were limited exchanges of names. Today, however, they are increasingly enhanced with a recitation of the speaker’s appropriate gendered forms of address: he/him/his, she/her/hers, they/them/theirs, or perhaps even less common neopronouns like zie/zir/zirs, xe/xem/xir, or sie/hir/hirs. This development — like every other dimension of progress for LGBTQ+ people — has been met with fierce resistance. In particular, three prominent objections have surfaced:

(1) calls for pronoun respect are a fraught demand for “special rights” from a vocal queer minority;

(2) semantically, gendered pronouns, honorifics, and titles cannot constitute slurs or epithets; and

(3) that these gendered labels are “just words,” and the consequences of their misuse, if any, are trivial and legally in-cognizable.

This Article explains why these arguments fail without exception. The first two, it counters by placing mis-gendering in its historical context. Recovering the history of verbal practices meant to express social inferiority, exclusion, and caste, this Article demonstrates that mis-gendering is simply the latest link in a concatenation of disparaging modes of reference and address. From addressing Black persons by only their first names, the intentional omission of women’s professional titles, and the deliberate butchering of the ethnically-marked names of minorities, these verbal slights have long been used to symbolize the subordination of societally disfavored groups.

Next, the Article articulates the injuries of mis-gendering to the legal academy, the judiciary and, ultimately, to the law. Until now, scholarship has largely overlooked mis-gendering as a pernicious socio-linguistic practice. To fill this gap, the Article identifies and examines the injuries of mis-gendering by looking to the stories of those who experience it. Drawing on a range of sources, including first-hand accounts, the Article presents, for the first time, a layered account of the harms caused by the mis-attribution of gender. It then closes by exploring the implications of these harms for law and legal practice, and laying the groundwork for potential reforms.

All told, the Article makes at least four contributions. First, contextually, it places mis-gendering in its historical milieu; along a continuum of verbal practices designed and deployed to harm the socially subordinated. Second, descriptively, by consulting original interviews, collected accounts, case law, philosophical scholarship, medical literature, and social science research, the Article offers a sustained discussion of mis-gendering’s injuries to gender minorities’ autonomy, dignity, privacy, and self-identity. Even while making the latter two contributions, the Article makes a third, corrective one, as well: It takes up the necessary work of challenging and dispelling mistaken narratives on the wrongfulness and harmfulness of gender mis-attributions, and replaces them with ones that center the lived realities of gender diverse persons. Fourth, prescriptively, the Article ends by outlining concrete illustrations of how the law must adapt to respond to and recognize the discriminatory harms it identifies.

Suggested Citation

McNamarah, Chan Tov, Misgendering (August 25, 2020). California Law Review, Vol. 109: 2227, Available at SSRN: https://ssrn.com/abstract=3683490 or http://dx.doi.org/10.2139/ssrn.3683490

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