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Recently Fox News claimed that Michigan House passed a bill that:

[...] could make it a felony to intimidate someone by intentionally using the wrong gender pronouns, according to some legal experts.

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

The bill does describe Hate Crimes:

A person is guilty of a hate crime if that person maliciously .and intentionally does any of the following to an individual based in whole or in part on an actual or perceived characteristic of that individual listed under subsection (2), regardless of the existence of any other motivating factors:

  • (a) Uses force or violence on another individual.
  • (b) Causes bodily injury to another individual.
  • (c) Intimidates another individual.
  • (d) Damages, destroys, or defaces any real, personal, digital, or online property of another individual without the consent of that individual.
  • (e) Threatens, by word or act, to do any of the actions described under subdivisions (a) to (d). (2)

The actual or perceived characteristics of another individual referenced under subsection (1) include all of the following:

  • (a) Race or color.
  • (b) Religion.
  • (c) Sex.
  • (d) Sexual orientation.
  • (e) Gender identity or expression.
  • (f) Physical or mental disability.
  • (g) Age.
  • (h) Ethnicity.
  • (i) National origin.

(Emphasis added)

However, there is no mention of pronouns.

Is their claim true? Is there any scenario in which wrong pronouns could result in up to 5 years in jail and up to $10,000 fine?

Credible sources from legal experts would be highly appreciated.

Edit

Top answers provide interesting opinions, but I would appreciate credible sources. Also despite the emphatic "no" I need an explanation to a simple scenario that stems from them as discussed in comments:

DoJ defines "hate crime" as:

“hate” means bias against people or groups with specific characteristics that are defined by the law.

At the federal level, hate crime laws include crimes committed on the basis of the victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity, or disability.

Emphasis added.

For example, what happens if someone threatens (intimidation) a person with defacing their property and misgenders them? Does the new law increase the penalty to up to 5 years from up to 2 (previous law)?

(1) A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person's race, color, religion, gender, or national origin, does any of the following: [...] (c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur. Ethnic intimidation is a felony punishable by imprisonment for not more than 2 years

So, if the answer is "new law doubles the felony jail-time", then please address it.

Sylvia
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    You fell into Fox News' trap by subtly misquoting the claim in the title. – DJClayworth Jul 03 '23 at 20:20
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    You seem to be misrepresenting what the article says, and making a claim that the article doesn't specifically make. From the article: 'Michigan's state House of Representatives has passed a bill that could make it a felony to use someone's preferred pronouns in a way that "intimidates" them'. I suggest then that the answers are answering the wrong question, because the source does not specifically claim that merely using the wrong pronouns amounts to intimidation. – thelawnet Jul 04 '23 at 03:59
  • @thelawnet Maybe they've since changed the article, but I can't find what you cite. Right now it reads: 'A recently passed bill in Michigan could make it a felony to intimidate someone by intentionally using the wrong gender pronouns, according to some legal experts. Michigan's state House of Representatives has passed bill HB 4474, a piece of legislation that criminalizes causing someone to feel threatened by words.' – srn Jul 05 '23 at 18:11
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    @Sylvia: I am against "does the law forbid this" questions here precisely because the legal industry is essentially *opinion-based* at its heart. Until someone is sentenced to a felony (and fails at their appeals), we can only get legal *opinions* on what a judge/jury would consider against the law. I don't like the top answer, because it is pure opinion, and yet... there is nothing more that can be provided. – Oddthinking Jul 12 '23 at 20:00
  • The answers do a good job addressing the claim from the news article. I'm not sure where you're going with these weird hypotheticals but they're pointless. What happens if someone gets misgendered and is so angry about it that they pull out a katana and attack a nearby mailman. What if the mailman pulls out a gun and shoots but misses and hits a priest. Who gets what jail time as a result of this misgendering. – CJR Jul 12 '23 at 20:31
  • Related: ["_House Bill 4474 (2023)_"](https://legislature.mi.gov/doc.aspx?2023-HB-4474), Michigan Legislature. – Nat Jul 13 '23 at 01:02
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    As Oddthinking says, inventing hypothetical scenarios and asking what legal decision would result is ultimately fruitless, because pretty much all legal systems, and certainly the US one, are based on judges and/or juries weighing the arguments made in a specific real case, not on a flowchart that answers everything in advance. For an existing law, you could ask "has it ever been successfully argued that..."; for a new law, we can only answer "is it the stated intention to..." Anything beyond that is opinion: "do you think it is likely that a judge and/or jury would interpret it as..." – IMSoP Jul 13 '23 at 01:03
  • Note that the relevant bill hadn't been passed as a law yet. Rather, the lower-house in Michigan's legislature passed it; Michigan's upper-house doesn't appear to have considered it yet, nor has Michigan's governor signed it. – Nat Jul 13 '23 at 01:03
  • The bill defines its usage of **"_intimidate_"**: "_"Intimidate" means 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. Intimidate does not include constitutionally protected activity or conduct that serves a legitimate purpose._". – Nat Jul 13 '23 at 01:12
  • @Oddthinking I understand your concerns but there are 277 questions tagged . Perhaps at the very least, create a rule allowing opinions by credible individuals only? – Sylvia Jul 13 '23 at 04:49
  • @Sylvia: Alas, just because I am personally against it, doesn't mean it is against the rules here. The community have never decided (via the Meta site) to restrict them. – Oddthinking Jul 13 '23 at 04:54
  • @DJClayworth __How so?__ Fox title: `Michigan House passes bill that could make using wrong pronouns a felony, fineable up to $10,000` My _original_ title: `Fox News claims bill could make wrong pronouns a felony, up to $10,000 fine`. Someone else edited into `Does a Michigan law make it a felony to purposefully use the wrong gender pronouns?` – Sylvia Jul 13 '23 at 04:55
  • They key thing is that the title omits the word "intimidate". Your quote of the original claim includes the word "intimidate", and as you will find by reading my answer that word is key to understanding. If Fox actually does not use the word "intimidate" then I would suggest editing to remove it from the claim, remembering to actually quote what Fox says exactly. – DJClayworth Jul 13 '23 at 14:14

2 Answers2

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No.

A hate crime consists of two parts: the crime (unlawful action), hate (motivation) and must be committed maliciously and intentionally (intent).

Subdivisions (a), (b), (c), (d) and (e) list the types of unlawful action, all of which are umbrella terms for a number of different crimes. These must be committed maliciously and intentionally to qualify as a hate crime.

The second necessary component, the motivation to commit these crimes, must come from specific bias against groups of people as defined in subsection (2). Without such motivation established, the crime will still be a crime, but not considered a hate crime. That's what meant by: "...based in whole or in part on an actual or perceived characteristic..."

To give a specific example of what "perceived" means here: Say person A has a bias against a religion R, falsely assumes that person B belongs to said religion and unlawfully attacks person B. Since the attack was unlawful, it is already a crime. But it is also a hate crime, even though person B does not belong to that religion. This is due to the bias of the attacker being a driving force behind the unlawful act, and their crime being "unsuccessful" in that regard is no excuse. Otherwise it would be like if someone robbed a bank and could get away with the excuse of having assumed there was more money in the vault.

The Department of Justice clarifies what is meant by hate:

The term "hate" can be misleading. When used in a hate crime law, the word "hate" does not mean rage, anger, or general dislike. In this context “hate” means bias against people or groups with specific characteristics that are defined by the law.

So that's a very clear "no" to your question. This bill not only doesn't mention gender pronouns, it isn't directed against opinions at all. Even a "simple" insult as an expression of a possibly hateful opinion does not qualify as a hate crime here (it may in other jurisdictions).

This bill is directed against unlawful actions, which are already considered crimes. The difference is that hate crimes - if not kept in check - have the potential to undermine the rule of law itself. These laws are not so much protection for specified groups (if you look at the list, everybody fits in somewhere) but rather an instrument of public safety.

jwodder
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srn
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    This is a good answer. To be clear though, the specific hate crime charge could be due to following someone around and aggressively misgendering them, if it was followed by a violent crime against that person? – CJR Jul 02 '23 at 13:13
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    As always, you'll have to ask the judge, but in my opinion that would be a pretty clear fit for the definition. Although "following someone around and aggressively" - whatever (including misgendering or anything else) could already fit (c) Intimidation. This depends on the specific case and on the question, whether an average person would consider the specific behavior intimidating. – srn Jul 02 '23 at 13:21
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    Intimidation doesn't have to be verbally or otherwise expressed in forms of threats. An aggressive behavior that would be perceived by the average person as an implicit threat, could count as intimidation. Say a public exchange of words and one following the other, not letting go of it, may not immediately become intimidation. Beyond a certain threshold (in terms of time, distance, grade of aggressive expression) it may. – srn Jul 02 '23 at 13:26
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    I guess what you're saying is that the law doesn't "make it a felony" to do anything, because it only covers acts that were already criminal (though with a lower maximum penalty, I assume). But this doesn't seem like a clear "no" to OP's other question, which was "Is there any scenario in which wrong pronouns could result in up to 5 years in jail and up to $10,000 fine?" – benrg Jul 02 '23 at 20:03
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    I agree that this answer doesn’t make it a “clear no” as stated. The quote in the question specifically says, “could make it a felony **to intimidate someone** by intentionally using the wrong gender pronouns”. The crux of that is whether misgendering (assuming deliberate, malicious and persistent) alone can constitute intimidation. If it can, then it seems to me that all three requirements are fulfilled and the answer to the question would actually be yes. – Janus Bahs Jacquet Jul 02 '23 at 20:16
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    True. It was my interpretation that OP's other question was in relation to the Michigan bill. Other than that - "any scenario were X can lead to Y" is theoretically true for almost any X,Y combination, without the need for any relation between the two. That's why I understood the question if the mere verbal expression of wrong pronouns could be punished with felony prison time and to that the answer is "no". – srn Jul 02 '23 at 20:17
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    More generally, mere speech can only be a crime in very, very narrow circumstances in the U.S. and "hate speech" is explicitly not one of those (see [National Socialist Party of America v. Village of Skokie](https://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Village_of_Skokie), for example.) As this answer states, a "hate crime" is something that is _already a crime_, but which provides more severe penalties when it can be shown that animus towards motivated said crime. There is no "hate speech" exception to the First Amendment. – reirab Jul 02 '23 at 22:11
  • @benrg : such allegations are more likely to be relevant in Canada, where there isn't such a strong protection of free speech as there is in the USA. – vsz Jul 03 '23 at 04:41
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    @JanusBahsJacquet I disagree. The crime is intimidation, not misgendering. Doing *anything* in a “deliberate, malicious, and persistent” way may constitute intimidation. I can imagine someone making “hello” intimidating, but that doesn’t mean it’s now a crime for me to say “hello” to you. It might be better to say this will “make it a felony to intimidate someone **while** intentionally using the wrong gender pronouns”. Intimidation = crime, intimidation + bias (with misgendering as evidence) = hate crime. – Tim Pederick Jul 03 '23 at 14:08
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    @TimPederick Yes, the intimidation is the underlying crime – but the question is what constitutes intimidation. Is intentionally misgendering someone (the act described in the quote in the question) enough? Just based on common sense, I would assume that at least a single, stand-alone instance of misgendering someone would not be enough to constitute intimidation under normal circumstances – but if you keep doing it, would that count? I don't think you could argue that intentionally misgendering someone is _not_ automatically malicious. – Janus Bahs Jacquet Jul 03 '23 at 14:23
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    @JanusBahsJacquet “…the question is what constitutes intimidation.” Indeed, and I see nothing to suggest that use of pronouns *per se* would do so. As the asker notes, the law doesn’t mention pronouns at all. And any charges based purely on it would have to get past jurors, reasonable doubt, etc. “I don't think you could argue that…” Certainly not! But the law cited doesn’t criminalise maliciously misgendering someone. It’s maliciously *intimidating* them (or doing the other acts in (a), (b), (d), and (e)), *based on* a listed characteristic—for which misgendering could be evidence. – Tim Pederick Jul 03 '23 at 15:17
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    @Tim Indeed, the law doesn’t mention pronouns, but unless there is a precise definition of what constitutes intimidation and what doesn’t (is there?), I don’t think it’s unimaginable that someone might press charges of it based on intentional, consistent misgendering – in which case, as you say, it would have to get past reasonable doubt, a court, etc. But if it _does_ get past that, then the law _would_ apply, so as long as there is a possibility that this may occur, I don’t think the answer can be a ‘very clear “no”’, but should instead be more of an ‘unlikely, but theoretically possible’. – Janus Bahs Jacquet Jul 03 '23 at 15:35
  • @TimPederick "while" just means they happen to be doing the two things at the same time. "by" means that the intent is that misgendering will intimidate the person. – Barmar Jul 03 '23 at 15:40
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    @JanusBahsJacquet I suppose it comes down to what you consider the “real” question to be. Your theoretical possibility seems aimed at the line, “Is there any scenario in which…?” Whereas the title specifically and the question as a whole suggest to me an interpretation of, “Does this specific law create a clear and plausible path for this outcome?” – Tim Pederick Jul 03 '23 at 15:46
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    @barmar not according to the definition used in the law. ""Intimidate" means 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. Intimidate does not include constitutionally protected activity or conduct that serves a legitimate purpose." A single instance of someone using a potentially offensive word is not intimidation. – barbecue Jul 03 '23 at 15:48
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    @barbecue what's the *snowflake* threshold for feeling terrorized, frightened, or threatened? "You hurt my transgender feelings; now I feel terrorized, frightened, and threatened". You laugh and mock me, but 20 years ago you wouldn't have expected biological men to be awarded gold medals in women's sports, but it's happened. – RonJohn Jul 07 '23 at 19:16
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    @ronjohn as with most laws, the standard is what a "reasonable person" would believe. Whether a specific action meets that requirement is determined by a judge and/or jury, based on evidence as provided by both sides. In other words, it's just like every other law. There are two parts, it's not enough to prove that the complainant felt threatened. Only if they felt threatened AND a jury believes that a reasonable person would also feel threatened under those same circumstances. – barbecue Jul 07 '23 at 21:39
  • @srn _"exchange of words and one following the other, not letting go of it, may not immediately become intimidation. Beyond a certain threshold"_ - this **contradicts the emphatic "no"** in your answer. Could you please address this exact question: _"Is there any scenario in which wrong pronouns could result in up to 5 years in jail"_ – Sylvia Jul 08 '23 at 06:35
  • @srn your DoJ quote actually makes this answer more of a "yes". Defining "hate" as "bias" makes it extremely broad. **Every single human on this planet has biases.** Could you address that too in your answer, please? – Sylvia Jul 08 '23 at 07:10
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    @Sylvia I could update and elaborate, but the essence is the same: if the result is 5 years in prison, the cause for that was **not** the use of a wrong pronoun, but criminal behavior, such as physical violence, property damage, threats or an aggressive behavior that **any** average person would deem intimidation - in combination with a bias. The only role the use of a wrong pronoun could play here is that it *may be* an indicator for the existence of such a bias. Just using the wrong pronouns (even on purpose) is not considered a crime in this bill . The article got it wrong. – srn Jul 08 '23 at 07:12
  • @Sylvia Sure, I can do that. – srn Jul 08 '23 at 07:13
  • @srn I've edited the question to help out editing the answer. In short, could you address __if the new law made the felony have more than double max jail-time__? – Sylvia Jul 12 '23 at 19:24
  • @RonJohn what _is_ the snowflake threshold for feeling terrorized, frightened or threatened? And should we include religion in the list of hate crimes knowing that snowflake religious people have been known to consider the slightest offense a threat? 20 years ago we wouldn't have expected... whoops, 20 years ago, 40 years ago, yesterday, people were being killed for giving "religious offense". You're treating hate crimes against gender identity as if hate crime laws were completely new and gender identity is fundamentally different than everything else in the list. – prosfilaes Jul 25 '23 at 18:00
  • @prosfilaes *people were being killed for giving "religious offense"*. Insulting someone is more than a step up from getting your feelings hurt. – RonJohn Jul 25 '23 at 21:26
  • @RonJohn ''Tragedy is when I stub my toe. Comedy is when you fall into an open manhole and die.'' (Mel Brooks) Same with insult and getting your feelings hurt. – prosfilaes Jul 25 '23 at 22:33
  • @prosfilaes I'm pretty sure that Brooks was sarcastically pointing out people's petty self-centeredness and cruelty (though honestly, I doubt the "and die" part). Thus, the over-dramatization of getting your feelings hurt is a good example of such petty self-centeredness. Thank you for reinforcing my point! – RonJohn Jul 25 '23 at 22:46
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    @RonJohn Thinking your opponents are the only ones who get offended at minor things and that all their offense is over minor things is a better example of such petty self-centeredness. – prosfilaes Jul 26 '23 at 18:47
  • @prosfilaes "millennial snowflakes" certainly aren't the only snowflakes. Angry White Karens are certainly another., – RonJohn Jul 26 '23 at 19:11
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The claim is that the bill makes it illegal to "intimidate someone by intentionally using the wrong gender pronouns".

This is a massive weasel statement. The bill does indeed make it illegal to intimidate someone, and does not restrict the ways in which it is done. If it is possible for one person to intimidate another by using the wrong pronouns (and that's a big "if") then this law forbids it. The claimant is sliding in the word "intimidate" to make the claim technically correct (if extremely unlikely) while trying to make hearers believe that simple use of "the wrong pronouns" will count as intimidation (which the law does not say). The OP has in fact fallen for this trap, by writing the question title without the key word "intimidate" in it. For weasel statements like this the claimant usually hopes people will go on to slightly misquote the claim like that, and get people upset about something that isn't true (their goal) while still being able to support the original weaselly form of the claim.

So to summarize:

  • Use of the wrong pronouns, even deliberately, is not itself illegal.
  • Intimidation is illegal, and is still illegal if the intimidation involves using the wrong pronouns.

It's worth noting that the text of the bill does not contain the word "pronoun".

For myself I find it hard to imagine a circumstance in which use of the wrong pronouns would be intimidatory. I suppose a group of people surrounding a trans man with fists clenched and chanting "She! She! She!" might do it. But that's certainly not the scenario the weaselly claimant is trying to get people upset about.

DJClayworth
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    I once read about a psychology study where they asked Americans who were going on vacation to Europe how much they would pay for life insurance. A separate group of travelers were asked how much they would pay for life insurance _that covers death in the event of terrorism_. The people in the second group were willing to pay more for this more restricted policy. I think there’s a similar cognitive bias at play here: people perceive a prohibition on “intimidating someone by using the wrong pronouns” as a greater restriction of their freedom than a blanket prohibition on “intimidating someone”. – Dan Romik Jul 04 '23 at 17:21
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    @DanRomik As written, the phrase “intimidating someone by using the wrong pronouns” implies to me "you intimidated them *by using* the wrong gender pronoun", ergo "using the wrong gender pronouns is sufficient for illegal intimidation." Based on my reading of the answers here, this is _not_ part of the law! A clearer statement would be "intimidating someone _while_ using the wrong pronouns", which I think would garner a different reaction. – Wowfunhappy Jul 05 '23 at 19:36
  • @Wowfunhappy Yes, that phrasing would garner a much milder reaction, which is why the claimant chose the weaselly way they did. – DJClayworth Jul 05 '23 at 23:49
  • Does using the wrong pronouns increase the penalty in some scenarios from __max 2 years__ to __max 5 years__? http://www.legislature.mi.gov/mileg.aspx%3Fpage%3DGetMCLDocument%26objectname%3Dmcl-750-147b – Sylvia Jul 12 '23 at 19:01
  • Please see my edited question to help you out. – Sylvia Jul 12 '23 at 19:25
  • Doesn't change my answer at all. Now if you had edited the title to reflect the actual claim I would. – DJClayworth Jul 12 '23 at 23:55
  • The title is pretty much identical to Fox's title. What would you consider more suitable. I can change it. – Sylvia Jul 13 '23 at 04:57
  • If the title really is Fox's title than can you edit the claim in the body of the question to reflect what Fox is actually claiming (while remembering to quote Fox correctly). – DJClayworth Jul 13 '23 at 14:15
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    Imagine if I asked "is it illegal to apply paint to a house you own?" because of a case study where a landlord spray painted a slur on the outside of a house they had rented to someone who, they discovered, was a member of a group they disliked, as part of a campaign of harassment to get them to move out. The title phrasing feels like that to me. – Kate Gregory Jul 21 '23 at 14:11
  • An analogy I like is saying that the law makes it "illegal to assault somebody with a pool noodle". It's absolutely true - it's illegal to assault somebody in any way, and if you can find a way to do it with a pool noodle you will be prosecuted. But it doesn't mean all use of pool noodles is illegal. – DJClayworth Aug 29 '23 at 15:40