Livengood: Michigan lawmakers aren't trying to criminalize pronoun use

Misinformation spread rapidly on social media last week claiming that legislation expanding Michigan's hate crime law to include protections for gay and transgender individuals would make it a felony for using a person’s wrong pronoun.

However, House Bill 4474 doesn’t even contain the word “pronouns," much less set out any sort of legal framework to criminalize misidentifying of gender or disagreeing with an individual's preference to be referred to as he, she or they.

Some conservative critics have taken a couple of words in the bill's text that says any action that “threatens by word or act” and interpreted it to mean that addressing someone as a “he” when the individual identifies as “she” would be a threat punishable by up to five years in prison and a $10,000 fine.

Washtenaw County’s prosecutor, the Democratic sponsor of the bill and two Republican lawmakers who voted for it said critics are leaping to a legal conclusion that is nonsensical and not rooted in fact.

“It doesn’t criminalize words said in the pulpit,” said state Rep. Graham Filler, an attorney and Republican from Clinton County who voted for the bill.

In other words, preachers will still have the First Amendment right to criticize homosexuality and gender identity without fear of prosecution.

Claims that the legislation would criminalize saying the wrong pronoun originated on conservative media websites that included the Daily Wire, the Washington Free Beacon, Fox News and Breitbart, as well as the British tabloid The Daily Mail. The reports started getting published a week after the Democratic-controlled House passed the bill 59-50, with support from Filler and Republican Reps. Mark Tisdel of Rochester Hills and Tom Kuhn of Troy.

"It is bizarro world," Filler said.

Michigan's hate crime law dating to 1988 already makes it illegal to intimidate someone based on an actual or perceived characteristic, such as race or color, religion, sex or national origin. The bill would add protections for sexual orientation, gender identity, age and physical or mental disability.

Under the legislation, intimidation is defined as a "willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frightened, or threatened, and that actually causes the victim to feel terrorized, frightened, or threatened."

“We’re talking about intimidating, threatening violence,” Filler said. “This is not the sardonic teller at the bank.”

The bill's definition of intimidation goes on to specify that it "does not include constitutionally protected activity or conduct that serves a legitimate purpose."

In other words, there would still be a First Amendment right to use the wrong pronoun for a transgender individual, said Eli Savit, Washtenaw County's Democratic prosecutor.

"If somebody says, 'I do not believe you are a man, I believe you are a woman' and misgenders someone, even intentionally, that is not a crime," Savit said. "That is First Amendment protected speech. ... I don't believe it's a kind thing to say. But it's not a crime."

It only becomes a hate crime when a "reasonable" person feels repeatedly frightened and threatened by an individual's words or acts.

"People can say whatever they want, that 'I feel frightened because somebody misgendered me,'" Savit said. "But that's not going to cut it for purposes of this bill."

The harassment would have to be repeated and continuing for it to be deemed a hate crime. The definition of intimidation in the bill "is almost the exact language that's already in place in Michigan's stalking law," Savit said.

"The notion that somebody can just be misgendered one time, misgendered accidently, or even intentionally, and that's going to lead to criminal charges is simply wrong," Savit said. "It's not supported by the text of the bill."

The criminality line for a hate crime, Savit said, would be crossed if someone tells a transgender woman "I don't believe you're a woman, I know where you live and my gun is lock and loaded."

"That absolutely could be a hate crime," Savit said. "That's legitimate intimidation. But just simply saying I'm not calling you by the pronoun that you identify as, that in no way can be criminalized consistent with the First Amendment."

But like most things in today's culture wars over LGBTQ rights, there's a lot of what-ifs tossed around on the political right.

What if there's a rogue prosecutor?

Filler and Tisdel, two of the Republicans who voted for the bill, don't buy that theory. Prosecutors who pursue legal theories to test the outer limits of a law often strike out in the courts, Filler said.

"Judges are human beings. ... If you bring crap into the courthouse, they're going to throw you out on your ear," Tisdel said. "They've got other stuff to do."

Tisdel, who hails from a district in Oakland County that's an electoral battleground for control of the state House, decided this bill wasn't worth "picking fights" with the Democrats and he voted yes.

 “It doesn’t particularly bother me,” he said.

Rep. Noah Arbit, the bill sponsor who is Jewish and openly gay, said the impetus of the legislation is to modernize a hate crime law that is "stuck in 1988" and didn't account for protections based on sexual orientation and gender identity a generation ago.

Arbit said Monday he was a bit surprised by the misinformation that spread across the internet last week about the legislation.

"The idea that someone is going to be prosecuted for misgendering someone is just wholly preposterous, ludicrous and just part and parcel of this demagoguery," said Arbit, D-West Bloomfield.

"And that's what it is," he added. "They are demagoguing this bill to the point where it is unrecognizable. And it's incredibly unfortunate."

clivengood@detroitnews.com