In June 2023, Michigan’s House of Representatives passed Bill HB 4474, which criminalizes intimidation or harassment based on characteristics including gender identity and expression, adding these protections to the state’s existing hate crime laws. This legislation is intended to protect marginalized groups, but it raises complex constitutional issues, especially concerning the First Amendment’s guarantees of free speech and religious freedom.
Compelled Speech, Title IX, and Impact on Schools
Title IX is a federal civil rights law that prohibits sex-based discrimination in schools and education programs receiving federal funds. Traditionally, Title IX protected individuals from discrimination based on biological sex. However, recent interpretations of Title IX, particularly under the Biden administration, have expanded to include gender identity and sexual orientation as protected classes. This has broad implications for students and parents.
Under this interpretation, schools may be required to accommodate students based on their gender identity, including allowing them to use bathrooms and locker rooms that correspond with their gender identity, participate in sports aligned with their gender identity, and be addressed by their preferred pronouns. Parents who have religious or philosophical objections to gender identity ideology may find themselves at odds with school policies that enforce these guidelines.
HB 4474 builds upon this framework at the state level, making it a crime to “intimidate” or “harass” based on gender identity. For example, if a student consistently refuses to use a peer’s preferred pronouns, that student could theoretically face penalties under this law, depending on how the school and legal authorities interpret their actions. This creates a potential conflict between free speech rights and anti-discrimination policies, especially if the refusal is rooted in religious or moral beliefs.
Religious Organizations and First Amendment Conflicts
The impact of HB 4474 is especially concerning for religious institutions like churches, mosques, and synagogues. Many religious organizations hold traditional views on gender, believing that gender is a binary, biologically determined characteristic. Under this new law, there could be legal consequences for individuals or organizations that, due to their religious convictions, refuse to affirm a person’s gender identity.
For instance, a church that teaches that gender is determined at birth and refuses to use a transgender individual’s preferred pronouns could face accusations of “intimidation” or “harassment” under HB 4474. This brings us into the realm of compelled speech, where the government may be seen as forcing individuals and organizations to express views they fundamentally disagree with.
This potential for compelled speech directly conflicts with prior Supreme Court rulings. In West Virginia v. Barnette (1943), the Court held that the government could not compel individuals to engage in speech they do not believe in, famously stating, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” .
Furthermore, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court ruled in favor of a baker who refused to make a cake for a same-sex wedding, arguing that the government could not compel him to engage in speech that violated his religious beliefs . Similarly, religious organizations may argue that being forced to affirm gender identities they disagree with constitutes compelled speech and violates their First Amendment rights.
Likely Legal Challenges
Given these concerns, it is likely that HB 4474 will face significant legal challenges. Religious organizations may argue that this law violates their free exercise rights under the First Amendment, which prohibits the government from interfering with religious beliefs and practices. Furthermore, the vague language of the law, particularly terms like “intimidation” and “harassment,” leaves it open to interpretation, increasing the risk of arbitrary enforcement. As in Grayned v. City of Rockford (1972), the courts have struck down laws that are too vague to provide citizens with clear guidance on what is legally prohibited .
In addition to challenges from religious organizations, parents and students who disagree with gender identity ideology may argue that this law compels them to use language that conflicts with their deeply held beliefs. The Supreme Court’s ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018) provides a strong precedent for challenging compelled speech. In that case, the Court struck down a California law that required pro-life crisis pregnancy centers to inform clients about state-provided abortion services, finding that the law violated the First Amendment by compelling the centers to speak against their beliefs .
Conclusion
Michigan’s HB 4474, though designed to protect individuals from harassment based on gender identity, opens a Pandora’s box of legal and constitutional challenges. It raises serious questions about compelled speech, religious freedom, and the vagueness of laws that attempt to regulate speech and behavior. In the coming years, we are likely to see multiple legal challenges, particularly from religious organizations, parents, and free speech advocates who believe that the state should not compel individuals to affirm ideologies they do not agree with.
As Justice Thomas has consistently emphasized, the First Amendment exists to protect the rights of all individuals, especially when their views are unpopular or countercultural. The courts will need to balance the desire to protect marginalized groups from harm with the equally important need to preserve the fundamental freedoms of speech and religious expression in our society.
Sources:
• Michigan Legislature, HB 4474 text: Michigan Legislature
• West Virginia State Board of Education v. Barnette (1943): Oyez - Barnette Case
• National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018): SCOTUSblog - NIFLA Case
• Grayned v. City of Rockford (1972): Justia - Grayned Case
• Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018): SCOTUSblog - Masterpiece Cakeshop Case
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