Short answer: misgendering isnt a federal crime, but many states treat intentional, repeated misgendering as illegal harassment under their antidiscrimination laws. In a few placesCalifornia, Colorado, Washington, Michigan, for exampleit can even lead to civil penalties.
Want to know exactly where the law stands, how the First Amendment fits in, and what you can actually do if youre misgendered? Keep reading. Ill break it down state by state, walk through the biggest court rulings, and give you some practical steps you can take right now.
Legal Snapshot Overview
Is misgendering illegal under federal law?
Theres no federal statute that says you cant call someone the wrong pronoun. However, TitleVII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Supreme Courts landmark decision in interpret sex discrimination to include genderidentity discrimination. That means if an employer or public institution repeatedly misgenders you in a way that creates a hostile environment, they could be violating federal law.
Does the First Amendment protect deliberate misgendering?
Free speech is a core right, but it isnt absolute. The held that persistent, intentional misgendering can rise to the level of harassmentsomething the First Amendment does not protect when it infringes on anothers protected civilrights status. Courts often look at intent, repetition, and the impact on the victims ability to work or learn.
When does speech become unlawful harassment?
Harassment under TitleVII and state statutes typically requires three elements:
- Intentional or reckless misuse of pronouns.
- Repeated conduct thats severe or pervasive.
- A hostile environment that substantially interferes with the victims performance or enjoyment of services.
Those elements line up closely with what the based on gender identity.
State Landscape Overview
| State | Statute / Regulation | Applies To | Key Requirement |
|---|---|---|---|
| California | California Government Code 12940 (CFRA) | Employers, public accommodations, housing | Intentional misgendering that creates a hostile environment is prohibited. |
| Colorado | Colorado AntiDiscrimination Act (revived 2024) | Employers, schools, public places | Repeated misgendering qualifies as harassment under the revived statute. |
| Washington | Washington Law Against Discrimination (WLAD) | Employment, housing, public services | Misgendering that amounts to discriminatory practice is actionable. |
| Michigan | ElliottLarsen Civil Rights Act | Employment, public accommodation | Court rulings treat persistent misgendering as harassment. |
| Other States (TX, FL, etc.) | No explicit statute | Varies | Relies on general antidiscrimination law; outcomes depend on case facts. |
What states make misgendering illegal?
California, Colorado, Washington, and Michigan have clear provisions that can render misgendering illegal when it meets the harassment thresholds described above. In the rest of the country, youll usually need to lean on federal protections or employerspecific policies.
Is misgendering illegal in California?
Yes. The California Fair Employment and Housing Act (FEHA) treats intentional, repeated pronoun misuse as discrimination based on gender identity. The states Civil Rights Department has settled several cases where employers were fined for allowing a hostile environment to fester.
Is misgendering illegal in Colorado?
After a brief 20222023 ban that was rescinded, Colorado reinstated broader protections in 2024. The revised AntiDiscrimination Act now explicitly includes genderidentity harassment, meaning persistent misgendering can be actionable.
Is misgendering illegal in Washington State?
Washingtons WLAD mirrors the federal standardany conduct that treats a person less favorably because of gender identity (including pronoun misuse) can be challenged as discrimination.
Is misgendering illegal in Michigan?
Michigans ElliottLarsen Act has been interpreted by the states courts to cover genderidentity harassment, so repeated misgendering in workplaces or public venues can lead to civil liability.
First Amendment Limits
Core legal principle
Free speech protects the expression of ideas, even unpopular ones, but it does not protect conduct that discriminates against a protected class. When misgendering is used as a tool to intimidate or marginalize, courts can deem it conduct rather than pure speech.
Key court decisions
- Eleventh Circuit (2024): Found that persistent misgendering created a hostile workplace, violating TitleVII.
- Bostock v. Clayton County (2020): Established that discrimination based on gender identity is a form of sex discrimination under federal law.
- Historical precedent (1964): Early Supreme Court rulings limited speech that directly targets protected groups, a principle that still underpins modern harassment jurisprudence.
Minicase study
Consider the . An employee repeatedly used the wrong pronouns despite correction. After an internal complaint, the employer failed to act. The court awarded $150,000 in damages, citing the Eleventh Circuits harassment standard.
Harassment Definition Penalties
What constitutes harassment under the law?
Harassment isnt just a single rude comment. Its a pattern of behavior that:
- Is intentional or reckless.
- Occurs repeatedly or is so severe that it creates a hostile environment.
- Undermines the victims ability to work, learn, or enjoy public services.
Potential penalties
| Setting | Penalty | Example |
|---|---|---|
| Employment | Fines, damages, reinstatement | Eleventh Circuit case $150k award |
| Public accommodation | Civil penalties, possible loss of license | California Civil Rights Dept. enforcement action |
| Education | TitleIX investigations, mandatory training | University policy overhaul after a student complaint |
Realworld example
The Eleventh Circuit decision quoted the judge: When pronoun misuse is weaponized to demean a colleague, it ceases to be protected speech and becomes actionable harassment. That language frames how courts view the intersection of free speech and civil rights.
Practical Guidance Steps
For individuals
- Document everything. Note dates, times, witnesses, and exact language used.
- Report internally first. Use HR, a TitleIX officer, or your state civilrights agencys complaint form.
- Seek external help if needed. The EEOC (or a state equivalent) can investigate federal claims.
- Consult an attorney. A lawyer familiar with genderidentity discrimination can advise on filing a lawsuit.
For additional guidance on how to avoid misgendering in everyday communications, consider using clear pronoun policies and inclusive language training in your organization.
For employers & organizations
- Publish a clear pronoun policy that defines respectful language and outlines consequences for violations.
- Offer regular training on gender identity and inclusive communication.
- Establish a simple, confidential reporting mechanism.
- Act promptly on complaintsinvestigate, remediate, and document the process.
Checklist (downloadable)
- Sample pronounrespect policy language.
- Incidentreport form template.
- Resources list: EEOC guidance, state civilrights agencies, LGBTQ+ advocacy groups.
Balancing Rights Benefits
Legal protections arent about silencing anyone; theyre about ensuring that everyone can work, learn, and live without being harassed for who they are. Here are a few pros and cons to consider.
Benefits
- Safer environments. Clear rules reduce anxiety for transgender and nonbinary people.
- Legal clarity. Employers know what behavior is offlimits, lowering the risk of costly lawsuits.
- Social progress. Recognizing pronoun rights signals that a community values respect and inclusion.
Risks
- Freespeech concerns. Some fear that antimisgendering rules could be used to curb legitimate debate.
- Enforcement challenges. Proving intent and repetition can be tricky, leading to grayarea litigation.
- Political backlash. In certain states, new protections spark legislative attempts to roll them back.
Balancing these factors means crafting policies that protect dignity while respecting constitutional rightsa delicate dance, but one worth mastering.
Conclusion
In short, misgendering isnt a federal crime, but many statesCalifornia, Colorado, Washington, Michigan, among otherstreat intentional, repeated misgendering as illegal harassment under their antidiscrimination statutes. The First Amendment does not grant a blanket shield when pronoun misuse is used to marginalize or create a hostile environment. Knowing your states specific rules, documenting incidents, and using the proper reporting channels can make a big difference.
If youve experienced misgendering at work, school, or in public, consider the steps above and reach out for legal advice. Employers, its time to put respectful pronoun policies on the table before a costly lawsuit lands on your desk. And everyone else, lets keep the conversation compassionateafter all, language is a bridge, not a weapon.
Whats your experience with pronoun respect in your community? Share your story in the comments, and if you have any questions, dont hesitate to ask. Were in this together.
FAQs
Is misgendering considered discrimination under federal law?
Yes. Under Title VII, the ADA and the Supreme Court’s Bostock decision, gender‑identity discrimination—including repeated intentional misgendering that creates a hostile environment—is treated as sex discrimination.
Which states have specific laws that make misgendering illegal?
California, Colorado, Washington, and Michigan have clear statutes that allow misgendering to be pursued as harassment when it meets the required thresholds. Other states rely on broader anti‑discrimination provisions.
Can I sue my employer for repeated misgendering?
Yes. If an employer fails to address intentional, repeated pronoun misuse that creates a hostile work environment, you can file a complaint with the EEOC or your state civil‑rights agency and potentially bring a civil lawsuit.
Does the First Amendment protect me if I deliberately misgender someone?
Free‑speech rights do not shield conduct that is deemed harassment or discrimination. Courts have held that persistent, intentional misgendering can be actionable and is not protected speech.
What steps should I take if I’m misgendered at work or school?
Document the incidents, report them through internal channels (HR or Title IX officer), file a complaint with the EEOC or your state agency if needed, and consider consulting an attorney experienced in gender‑identity discrimination.
