While we certainly do not think people should be invidiously targeted because of personal status, we do believe that some of the recent efforts to expand legal remedies for people targeted by hateful speech take one’s breath away.
Two weeks ago the New York City Commission on Human Rights issued a formal guidance that it construes the New York City Human Rights law provision prohibiting employers, landlords and providers of public accommodations from discriminating against individuals over their “alienage and citizenship,” to include a bar to the use of certain terms when speaking to immigrants when the intent is to “demean, humiliate or harass….” Offenders could face up to $250,000 in fines for each violation.
Thus, the announcement listed as examples of prohibited speech: “Threatening to call ICE (the Immigration and Customs Enforcement agency) when motivated by discrimination, derogatory use of the term ‘illegal alien,’ and discrimination based on limited English proficiency are unlawful discriminatory treatment under the NYC Human Rights Law.”
Also, the same language is similarly proscribed and penalized if directed at a lawful resident or citizen erroneously perceived by the speaker as being in the country illegally.
Frankly, it is hard to understand how this is a serious anti-discrimination measure in the traditional sense and not simply a statement against the Trump Administration’s immigration policy. Indeed, the guidance came as Democrats continue to rail against that policy. Moreover, “illegal alien” is a term used in federal law to describe someone’s illegal presence in the country, not the newly popular “undocumented.” Ironically, in the guidance itself, the Commission says the phrase “immigration status” was substituted for the actual statutory language (i.e., “alienage and citizenship”) “as ‘alienage,’ as a derivative of ‘alien’ may be offensive.”
No, we are not joking.
It appears that the City would seek to levy substantial fines for words commonly used in local and national laws and are also fundamentally descriptive. And as for threatening to call ICE, we wonder what the City thinks about actually calling ICE? Are citizens now to be subject to sanction if they seek to assist in the enforcement of federal law?
This is not the first time the City has moved in this direction. In an earlier guidance, the Human Rights Commission interpreted the statutory prohibitions against gender discrimination as including a requirement that employers and landlords refer to transgender employees and tenants by the pronouns of their choice. Some transgender individuals were said to prefer the use of pronouns other than the traditional he/him/his or she/her/hers. The guideline notes that some transgender people choose “ze” which apparently is the third person singular, such as he and she; and “hir” which is the third person plural, similar to they. “Gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities,” the Commission said.
The Commission told the New York Post that the pronoun guidelines were not meant to apply to accidental misuses of pronouns, only those “situations in which individuals intentionally and repeatedly target transgender and gender non-conforming people with this type of harassment.”
According to the Post, the idea of pronouns other than “he/she” has come to the fore as more people are identifying with “non-binary” gender roles, meaning not traditional male/female.
We find all of this troubling. Not only are the new rules directed at speech and are efforts to enforce new sets of politically correct values on New Yorkers. They are also arbitrary enlargements of statutory enactments and the work products of administrative agencies, and not legislatures. It seems to us that the latter is the place where these sort of changes should be taken up – not in appointed, unrepresentative bodies.