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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.

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    You fell into Fox News' trap by subtly misquoting the claim in the title. Jul 3, 2023 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 4, 2023 at 3:59
  • @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 5, 2023 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, 2023 at 20:00
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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, 2023 at 1:03

2 Answers 2

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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.

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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 2, 2023 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. Jul 2, 2023 at 20:16
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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, 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 <insert protected class here> motivated said crime. There is no "hate speech" exception to the First Amendment.
    – reirab
    Jul 2, 2023 at 22:11
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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. Jul 3, 2023 at 14:08
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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 3, 2023 at 15:48
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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.

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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 4, 2023 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. Jul 5, 2023 at 19:36
  • @Wowfunhappy Yes, that phrasing would garner a much milder reaction, which is why the claimant chose the weaselly way they did. Jul 5, 2023 at 23:49
  • Does using the wrong pronouns increase the penalty in some scenarios from max 2 years to max 5 years? legislature.mi.gov/…
    – Sylvia
    Jul 12, 2023 at 19:01
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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. Jul 21, 2023 at 14:11

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