"New York Recognizes No Tort of 'Misgendering'"

From Justice Gerald Lebovits (Manhattan trial court) in Tuesday’s Garlington v. Austin; defendant Burstiner goes by “they/them,” but plaintiff had apparently referred to Burstiner as “him”:

The branch of defendants’ motion to … requir[e] plaintiff to use correct names and pronouns … is denied…. There is … no showing of any actual “misgendering” or any legally cognizable injury arising from it. New York recognizes no tort of “misgendering.” …

Burstiner had sought an order “requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur,” and argued,

New York Penal Law §240.31 criminalizes aggravated harassment in the first degree when conduct is motivated by bias regarding “gender, gender identity or expression” or other protected characteristics. Each instance of deliberate misgendering constitutes a separate violation under this Class E felony provision.

New York Civil Rights Law §79-n provides civil remedies for “bias-related violence or intimidation” based on gender identity. The statute covers “intimidation” as well as violence, and New York courts have recognized that persistent misgendering can constitute bias-related harassment under this provision.

Garlington’s lawyer had responded,

Item IV seeks to “ORDER Plaintiff to cease his perpetual pattern of threats, harassment, and mobilization of third parties creating substantial risk of harm to victims who identify themselves publicly, in addition to requiring Plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering that has occurred and continues to occur.” It is impossible to know what is meant here. It is far too vague and general. Moreover, directing a party “to use correct names and pronouns” is an obvious First Amendment violation …. And misgendering is not a tort.

Burstiner had replied,

Time and again, Counsel demonstrates the uncouth, disrespectful, dehumanizing, sanctionable conduct that characterizes this outrageous action, spitting on any deference he purports to show this Honorable Court. He gives up the ghost as a transphobe twisting the First Amendment to mean, in effect, “Intentionally misgendering you is free, not hate, speech,” a hollow, disingenuous notion echoing willfully ignorant, intellectually dishonest predators who weaponize incompetence as our social fabric tears at the seams in this ‘Age of Information’. Truth exists and, in this case, it is known.

Unlike isolated incidents that might constitute “petty slights,” wanton unwillingness to accept the truth of an individual’s gender expression or pronouns demonstrates a total disregard for facts of reality. The distortion of ‘First Amendment Rights’ by obviously bad faith actors who serve against the interests of justice impugns the Opposition’s credibility beyond repair. Defendants respectfully request this Court direct all parties to use appropriate designations consistent with each party’s gender identification, as failure to do so appears calculated to harass and intimidate.

While misgendering is not a tort, it absolutely is a qualifier that helps classify Plaintiff’s relentless, ubiquitous misgendering over three (3) years, including deceased persons who cannot defend themselves, as Aggravated Harassment in the First Degree, a punishable Class E felony. Counsel is reminded that perpetuating it showcases exactly the kind of severe, pervasive assault prohibited by New York professional conduct rules and is, in fact, grounds for disbarment under New York’s Amended Rule 8.4(g), effective June 10, 2022.

There’s also a lot more in the case related to other matters, which I blogged about earlier today. Robert A. Altman represents plaintiff.

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