Michigan Republican Sets the Record Straight on Hate-Crime Bill That Could Criminalize Using ‘Wrong’ Pronouns By Haley Strack
Michigan’s hate-crime bill is subjective and illogical and could criminalize the use of biologically accurate gender pronouns, state representative Andrew Beeler told National Review, pushing back against local supporters of the legislation who have dismissed claims that it threatens free speech.
The bill would punish speech that “intimidates another individual” with up to five years in prison and a $10,000 fine.
Democrats blamed misinformation last week after several outlets reported that the bill would criminalize the refusal to use preferred pronouns. The bill doesn’t dismiss an individual’s First Amendment right to constitutionally protected activity but does criminalize speech if a “reasonable” person feels “intimidated,” a standard state Republicans say is too vague.
“This entire bill hinges on how you define ‘intimidation,’” Beeler said. “I’ll define it the way that the bill defines it: The full definition is, ‘willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable individual to feel terrorized, frightened, or threatened,’ etc. If you intimidate by that definition, anyone in the protected classes, you are subject to criminal prosecution and a potential felony.”
Although Michigan’s 1988 hate-crime law already makes it illegal to intimidate based on race, religion, sex, or nationality, the new bill expands protections for gender identity or expression, which it defines 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.”
A standard of reason, by which juries determine whether or not a person acted with average care and consideration, is difficult to apply when Michiganders can’t agree on basic truths about the nature of gender, Beeler said.
“What the proponents of the bill will say is that the reasonable-person standard is something that’s used throughout law, and has been used for some time. I’m no lawyer, so I’m fine with that. And I don’t claim to make any assumptions of what that actually looks like in the courtroom,” he said. “However, we’re using this reasonable-person standard for the definition on which the entire bill hinges in the very same bill that we’re using language like ‘gender ideology’ and ‘expression.’ Is it reasonable to think that a man can become a woman? Or is it reasonable to think that if your chromosomes are XY then you’re a man? We’re using this reasonable-person standard on things for which there is no rationality whatsoever.”
House Bill 4474 passed Michigan’s legislature 59 to 50, with three votes belonging to Republicans Graham Filler, Thomas Kuhn, and Mark Tisdel. The bill is expected to pass the Democrat-controlled Senate and will likely be signed by Governor Gretchen Whitmer.
Filler said that critiques saying the bill could criminalize pronouns are nonsense: “It doesn’t criminalize words said in the pulpit,” he told the Detroit News. Tisdel told the outlet that the bill wasn’t worth “picking fights” over.
Although Beeler is optimistic that the reasonable-person standard might protect Michiganders from being convicted, an additional provision in the bill ensures that someone not found guilty of hate speech in a criminal court may still be tried in civil court. If found guilty in civil court, an individual must pay damages for actual or emotional distress or $25,000, whichever is greater.
“What happens if someone files a civil suit in a jurisdiction in which there’s a woke judge or prosecutor? In civil court, you’re on the hook for no less than $25,000, and the damages included in that section regarding the civil suit include emotional distress,” Beeler said. “So with this unquantifiable term, ‘emotional distress,’ I can be taken to civil court, and by the decision of one human being can be on the hook for no less than $25,000 for using biological pronouns if one person makes a decision that [this] constitutes intimidation.”
A previous version of this article suggested that the bill could dismiss an individual’s First Amendment rights if a reasonable person feels intimidated. It has been updated to reflect the bill’s language, that, “Intimidate does not include constitutionally protected activity.”
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