LANSING, Mich. – New legislation that would expand Michigan’s hate crime law to include protections for the LGBTQ+ community would not make it a felony to address a person by the wrong pronouns.
The word “pronoun” does not even appear in the bill, which was recently passed by the Michigan House. Critics claim that since House Bill 4474 lists “intimidation” under the list of prohibited acts, someone could potentially be charged with a felony for using the wrong gender pronouns. It is not likely at all, and not that cut and dry, experts say -- but, still, those claims have spread across the internet.
A preferred pronoun is how someone likes to be referred to when not using their exact name. Examples of pronouns include he/him/his, she/her/hers, and non-gendered or nonbinary pronouns that are not gender specific, like they/them.
House Bill 4474 seeks to expand what constitutes as a hate crime in Michigan as it relates to real or perceived identifying characteristics including race, religion, sex, sexual orientation, gender identity or expression, and more. The bill also outlines the punishments for such crimes.
Nowhere in the bill does it explicitly criminalize the use of incorrect pronouns.
“Using a person’s preferred pronoun is akin to using their preferred first name. For example, if you meet a person and they say, ‘Call me Sam,’ rather than Samuel or Samantha, we would do so out of both respect for another’s self-identity and common courtesy. The same courtesy and respect should apply to a person’s requested pronouns,” said Michael McDaniel, associate dean emeritus professor, and director of homeland security law programs at Western Michigan University’s Thomas M. Cooley Law School.
To be found guilty of a hate crime under this bill, the perpetrator would have to intimidate someone in a way that is “malicious” and “intentional.” To be considered intimidation, the act would have to involve “repeated or continued harassment” of another person in a way that is not already protected under the Constitution, and “would cause a reasonable individual to feel terrorized, frightened, or threatened.”
In most circumstances, the incorrect use of a person’s pronouns would likely not be considered illegal.
What does House Bill 4474 do?
House Bill 4474 is among a package of bills that would expand Michigan’s current hate crime law to protect people based on their “sexual orientation,” “gender identity or expression,” “physical or mental disability,” and “age.”
A person would be guilty of a hate crime if they “maliciously and intentionally” do any of the following things “based on actual or perceived characteristics of that individual, regardless of the existence of any other motivating factors:”
- Uses force of violence on another individual.
- Causes bodily injury to another individual.
- Intimidates another individual.
- Damages, destroys or defaces any real, personal, digital, or online property of another individual without the consent of that individual.
- Threatens, by word or act, to do any of those actions.
The bill defines “gender identity or expression” as “having or being perceived as having a gender-related self-identity or expression whether or not associated with an individual’s assigned sex at birth.”
According to the Department of Justice, “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.”
Why wouldn’t this bill make it a felony to use the wrong pronouns?
“While disrespectful or rude, a failure to use a person’s requested pronoun would not run afoul of the proposed amendment to our Hate Crimes Law for many reasons,” McDaniel said.
That is because the hate crime law does not refer to speech, but is instead focused on conduct. “The conduct to be prohibited by the law is intimidation,” according to McDaniel.
The bill defines intimidation 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. Intimidate does not include constitutionally protected activity or conduct that serves a legitimate purpose.”
McDaniel says there are some instances in which speech could constitute as intimidation under Michigan’s hate crimes law, but only when that speech is not directly protected by the First Amendment.
“The U.S. Supreme Court has held in some instances that prohibited conduct can include expressive conduct, contingent upon the speaker’s intent,” McDaniel said. “I find the Michigan Hate Crimes Law definition of intimidation to be an admirable attempt to state an oft-misunderstood area of law. In two sentences, it requires (1) a willful intent to intimidate, (2) both an objective standard, a consideration of whether such conduct would reasonably seem to terrorize, frighten or threaten another, coupled with a subjective belief that the victim feels terrorized, and (3) a recognition that such law can only be enforced to the extent it does not violate the First Amendment or other provisions of the Constitution.
“Intimidation is analogous to ‘true threats,’ which the U.S. Supreme Court has long-referred to as ‘unprotected speech,’ McDaniel said. “On [June 27, 2023], the U.S Supreme Court reaffirmed in Counterman v Colorado, that true threats can be prohibited by criminal penalties, and, for the first time, accepted a level of mental capacity of reckless behavior for uttering true threats. The Court holds that ‘recklessness is morally culpable conduct, involving a ‘deliberate decision to endanger another.’”
McDaniel said Michigan’s House Bill 4474 would require a “much higher state of culpability, a willful intent to intimidate, than the Supreme Court would now require.”
What would the punishment be for committing a hate crime?
The bill is among a package of four bills that were introduced in the Michigan House on April 26.
House Bill 4474 and House Bill 4475, would expand the definition of hate crimes to include protections from violence based on sexual orientation, gender identity, age, and disability. The other two bills, 4476 and 4477, would create an Institutional Desecretion Act for acts of destruction and vandalism or threats against places of worship, cemeteries, and educational facilities.
All four bills passed the Michigan House on June 20. They were all referred to the Committee on Civil Rights, Judiciary, and Public Safety.
If found guilty, a hate crime is a felony punishable by not more than two years in prison and/or a fine of up to $5,000.
There are several factors that could raise the punishment to not more than five years in prison, and/or a fine of up to $10,000. Those factors include (as written by lawmakers):
- The violation results in bodily injury.
- The person has one or more prior convictions or violating this law.
- A victim of the violation of subsection one is less than 18 years of age and the offender is at least 19 years of age.
- The person commits the violation of subsection one in concert with one or more other individuals.
- The person is in possession of a firearm during the commission of the violation of subsection one.
If the defendant consents, the court may impose an alternative sentence. The court will consider the criminal history of the offender, the impact of the crime, and the availability of an alternative sentence before making a decision.
An alternative sentence may include requiring the offender to complete community service to help them understand the impact of the offense on the victim and the community.