New York Court Rules Misgendering Not a Recognized Tort in Garlington v. Austin Case

A Manhattan trial court has ruled that misgendering does not constitute a tort under New York law, denying a motion that sought to compel correct pronoun usage. Justice Gerald Lebovits of the New York Supreme Court (Manhattan trial court) issued the decision in Garlington v. Austin on Tuesday.

The case involved defendant Burstiner, who uses they/them pronouns, while the plaintiff had allegedly referred to Burstiner using male pronouns. Burstiner sought an order requiring the plaintiff to use correct names and pronouns for all parties, as well as damages for each instance of deliberate misgendering. The court denied the motion, stating there was no showing of any actual misgendering or legally cognizable injury arising from it.

Legal Arguments and Counterarguments

Burstiner’s legal team argued that New York Penal Law §240.31 criminalizes aggravated harassment in the first degree when conduct is motivated by bias regarding gender identity. They contended that each instance of deliberate misgendering constitutes a separate violation under this Class E felony provision. Additionally, New York Civil Rights Law §79-n provides civil remedies for bias-related violence or intimidation based on gender identity, covering harassment as well as violence.

Garlington’s lawyer responded that the motion sought to order the plaintiff to cease alleged threats, harassment, and mobilization of third parties, while also requiring correct pronoun usage and damages. The response argued that the request was vague and overly broad, and that directing a party to use specific pronouns would violate the First Amendment.

Court Rejects Misgendering as a Tort

The court firmly rejected the notion that misgendering constitutes a tort, stating that New York recognizes no such cause of action. In its ruling, the court emphasized that misgendering alone does not meet the threshold for a legally cognizable injury.

Burstiner’s reply accused the plaintiff’s legal team of disrespectful and dehumanizing conduct, arguing that the motion demonstrated a disregard for facts and an attempt to weaponize the First Amendment. The response stated:

"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."

Burstiner’s legal team further argued that persistent misgendering over a period of three years, including instances involving deceased individuals, could qualify as aggravated harassment under New York Penal Law §240.31. They contended that the plaintiff’s actions were calculated to harass and intimidate, despite misgendering not being recognized as a standalone tort.