Michigan Pronouns Law 'Probably Is Unconstitutional'

A bill passed by the Democrat-led Michigan state House last month which would make it a felony for people to intimidate or threaten others by disrespecting their gender identity—for example, by deliberately misgendering them—has sparked a controversy over whether the proposed law violates the First Amendment.

The measure, House Bill 4474, is included in a package of legislation that would replace Michigan's existing Ethnic Intimidation Act. It would expand the existing law to cover sex, sexual orientation, age, gender identity or expression, and physical or mental disability.

Religion, ethnicity and race were already included in the previous legislation and will still be covered under the new law. The bill would make it a hate crime to cause someone to "feel terrorized, frightened, or threatened" with words—including by deliberately misgendering them.

The bill was criticized by some on the political right due to the focus on the gender identity part of the bill, which is only a fraction of what the legislation would cover. Former judge and television personality Joe Brown called the law an "abomination," saying on Twitter that it was "so obscenely contrary to American 1st A[mendment] Law."

But is the bill, as critics claim, likely to be unconstitutional?

"The bill reaches the use of force or intimidation 'based on' any of a number of characteristics, and gender expression is one of them, but I would take this to mean that this language simply brings within the statute acts of violence or intimidation undertaken because the perpetrator perceives the victim as a member of a group he or she hates, including hatred of transgender individuals," James Gardner, a constitutional law professor at the University of Buffalo, told Newsweek.

"The act limits the punishment of 'harassment' to acts that would cause terror in a reasonable person. This seems pretty standard."

Eric J. Segall, the Kathy & Lawrence Ashe Professor of Law at Georgia State University, told Newsweek that "the law basically says you can't threaten somebody with speech that will discriminate on the basis of sexual orientation or gender identity. And here's the deal. Hate speech and threats aren't the same thing."

In the U.S., it's legal for someone to say, as per Segall's example, something along the line of "I think all gays and lesbians should be sent to prison or we should make it illegal in this country to have gay sex," as long as this sentence doesn't identify any one person or targeting any individual. The First Amendment, which protects freedom of speech, makes no exception for offensive, repugnant, or hateful expression.

"However, the fact that I can stand on a street corner and say 'All Jews should be sent back to Israel'—which I can do in America—does not mean that I can go up to a Jewish person and get in their face and say, 'You should be sent back to Israel'" Segall said.

"If I do that in a way that is threatening, then it may become what's called a true threat. And a true threat is not protected speech under the First Amendment," he said. "And the court just held last week that the test basically is the person either intended to cause harm, or use speech in a reckless way."

Reckless means that the person should have known that the speech would cause someone to feel threatened.

"So if you take that setup, then this law probably is unconstitutional, depending how it's applied, because I don't know if it requires that face-to-face harassment," Segall said of the Michigan law.

"Even in that category of nonprotected speech, the states are not allowed to make what are called 'content-based distinctions' of speech," Segall said. "There are two ways this law could be unconstitutional: one is that it goes beyond true threats; two, it kind of makes a content-based distinction in the statutes, and they're not allowed to do that."

What Michigan could do, constitutionally, it's to "prohibit all true threats," Segall said.

"Michigan could say you're not allowed to threaten somebody, and that's unconstitutional, that's harassment. What they can't say is you're not allowed to threaten somebody by calling them a Republican or you're not allowed to threaten somebody by calling them a Democrat, because then the state is giving different weight to different kinds of speech."

It's complicated, Segall, said, adding that "the law is probably in trouble under American law. I also think that's unfortunate because my personal view is the law should be constitutional, but I think it's likely not."

"In a sane world, which is most free countries on Earth, you just outlaw all threats," Segall said. And if you threaten somebody, you go to jail. It's much more complicated in America. Guns and free speech. America is crazy about both."

HB 4474 was passed by the Democrat-controlled Michigan House of Representatives in a 59 to 50 vote on June 20, and it now moves to the state Senate, which has a 20 to 18 Democratic majority. If passed, HB 4474 would need to be signed into law by Governor Gretchen Whitmer, also a Democrat.

Under the bill, offenders would be guilty "of a felony punishable by imprisonment for not more than 5 years, or by a fine of not more than $10,000."

Andrew Feldman, spokesperson for the Michigan Democratic Party, told Newsweek that the bill is being deliberately misinterpreted to polarize voters and cause outrage among conservatives.

"This was a bipartisan bill," Feldman said. "This is common-sense hate crime legislation that has bipartisan support. What's going on here is that far-right conservatives are using their typical tactics of trying to scare people and spread lies. And what we've already seen before is that these lies don't work. Voters are smart enough and these tactics are not going to work in 2024."

Feldman encourages everyone to "read the facts about this actual legislation because what it says is that a person can be found guilty of a hate crime for maliciously committing these acts based on another's identity. And that includes use of force and violence, causing bodily injury, intimidation, damage, destroying a defaced property and threatening to do any of the above actions."

"Those are all criminal offenses," he added. "And so this is just a standard hate crime bill very clearly defines what qualifies as a hate crime. And nothing that Republicans are saying about this bill is accurate."

Still, if the bill was signed into law and appealed to the Supreme Court, it would be struck down by a majority of the justices, Segall said.

"This law would be struck down by the Supreme Court. Probably both because it protects LGBTQ speech, which this court no longer wants to do at all, and because of their definition of free speech which is way overbroad," he continued.

"This shouldn't even be a constitutional question. The question is, did somebody threaten somebody else? If the answer is yes, then what they're doing is not legal. Now, I understand that you have to define threatening behavior in a way so as not to offend free speech. But that's a factual question for the jury. Did this person threaten this person? And then the jury says yes. It shouldn't be about free speech. But that's not how America works."

Newsweek reached out to the Michigan GOP via email for comment.