Free Speech and Discrimination Redux

by Jay Marshall Wolman

Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”.  There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws.

The fine folks at the New York City Commission on Human Rights have decided to push the envelope, issuing guidelines for employers and landlords regarding transgendered individuals.  Among the well-intentioned guidelines are those that prohibit an employer or landlord from using a person’s biological gender instead of the person’s preferred gender.  Within the confines of the law and the powers of the Commission, it seems to be a natural progression from prohibiting treatment of a biological woman differently because she is not male to treating a male differently because he is a biological woman.  This progression has focused on the rights of the employee and tenant.

However, landlords and employers have rights, including First Amendment rights.  We may talk about the speech/conduct distinction, but it is a very much a speech regulation when we are specifically talking about what specific words a landlord or employer is allowed to use.

It also prohibits gender-specific dress codes and, in effect, single gender bathrooms.  Some businesses may take issue with these regulations as well, perhaps a Hobby Lobby or Chik-fil-a.  Looking at Boy Scouts of America v. Dale and more recent cases such as Hobby Lobby (though not decided on 1st Amendment grounds) or Citizens United, freedoms of belief and association, including at the corporate level,  are likely to swallow the entirety of the NYC guidelines.  Gender expression is a form of speech, and government isn’t supposed to be in the business of deciding which content is preferred.

If there is substantial litigation over these new guidelines, they may set the stage for greater scrutiny of all speech regulations under the guise of anti-discrimination.

 

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