Two weeks ago the Obama administration issued a federal edict decreeing that every public school in America allow students to use whichever bathroom they choose, under pain of lawsuit and/or loss of federal funding.

Less than a week after that, New York City’s Commission on Human Rights issued its own edict, declaring that anyone under the city’s rule who refused to use the preferred gender pronouns in dealing with transgender individuals—he, she, “xe,” or “hir”—would be guilty of harassment and subject to penalties up to $125,000 for the first infraction and $250,000 “for violations that are the result of willful, wanton, or malicious conduct.” As law professor Eugene Volokh noted, the use of the term “harassment” is important, because it means that employers and businesses are responsible not just for their own behavior but for the behavior of their employees and customers.

And New York is, if you can imagine it, behind the times. Out in Oregon, Leo Soell, a fifth-grade teacher in the Gresham-Barlow school district, decided she was transgender. (Soell made this decision public only after receiving tenure.) Soell’s transition took the form of insisting that she was neither male nor female and demanding that her colleagues refer to her as “they.” When other teachers continued to call Soell “she” and “her” and “Miss Soell,” Soell filed a harassment complaint. The school district settled with they for $60,000 and promised to initiate a sweeping set of transgender reforms. To hammer home the power dynamic, the school district claimed, in the statement accompanying the payout, that it was quite “pleased” with the outcome.  Continue reading