Is there a legal compulsion to use people’s chosen pronouns?

Who would have thought that something we’d one day come to fight about is how to refer to people in the third person?

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Well, that’s where we are, to the extent that I was watching an online debate as part of the World Schools Debating Championships, where one of the school speakers introduced themselves along with their pronoun.

Whether it’s a good or a bad thing is not a debate I find entirely attractive, however, when you look to what it may mean in law, it gets fascinating.

If you think back to early primary days, even grammar tests asserted the traditionally established him and her, so of course people may feel strongly about maintaining it. I mean, who wants to admit that grade 3 was a waste of time?

However, it is they who dispute their gender assignment given at birth who have recently been socially empowered to insist on the use of their chosen pronoun. No longer is it expected to be that you are a she simply because you were born with a uterus. Identity has moved beyond that and to a far more self-determinative space.

So the concept of a right to self determination would be an ideal place to start. Unfortunately, it’s likely one of the least developed legal principles in our legal system. It’s been used to argue (successfully) for individual cases of euthanasia and abortions, and refusal of medical treatment. It’s also been used to justify self-isolated communities such as Orania.

From its previous use, we can note that it has effectively been applied to prevent obstruction to the body as well as enable the creation of communities, but I have yet to see it enable the imposition of an act on another person. In other words, I cannot see the right to self determination compelling a person to recognise and address another by their selected pronoun.

“But what of dignity?”, many may ask, and that may be a stronger stance to take.

Broken up into two parts, dignity is regarded to consist of dignitas (your self-worth and value) and famas (your reputation), and while reputation may play a role, it makes sense to focus on the value one places on their own identity.

But depending on who you ask, a person’s self-worth could be influenced by nearly anything. Judge Davis has even once warned that the court has given the concept of dignity a content and scope that make “for a piece of jurisprudential Legoland – to be used in whatever form and shape is required by the demands of the judicial designer”.

Even worse, scholars are hard-pressed to come up with any kind of universal definition, which means that even its elements may shift and change as required. This is why the concept of dignity has been used in a practical sense for everything from prohibiting rental lockouts, to marriage equality, to the abolition of the death penalty. Oh, and also euthanasia.

However, all of the above examples are also in the, “stay out of my way” category and not the “do something for me” category.

Has dignity ever been used to impose?

In a sense, yes. From the perspective of a Hindu girl defying school policy to wear a nose stud, dignity was applied to make the school “stay out of her way”. From the perspective of the school, however, that same ruling was to impose on the school that they exempt the girl from their rules.

We’ve already seen how dignity can create certain expectations and even obligations, so how far does it stretch?

Given the rather fluid dynamics of the concept, a strong legal Lego builder could very well convince the court, given an appropriate case, when it comes to compelling the use of chosen pronouns.

But until such a time, nothing in law compels any observation of a chosen pronoun, save perhaps for a communal moral conviction, if any.

So the question to those who want chosen pronouns protected by the law is whether they’re willing to go build some legal Lego.

Unfortunately, as is the Achilles’ heel with all application of innovative law, Lego is expensive.

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