A Forgotten 1964 Supreme Court Case Suggests the First Amendment Doesn’t Protect Misgendering People

A Forgotten 1964 Supreme Court Case Suggests the First Amendment Doesn’t Protect Misgendering People

Courts around the country are grappling with claims by teachers, professors, businesses, and more, which assert that their right to free speech protects them from consequences for calling transgender students, customers, and employees by names and pronouns inconsistent with the gender they live every day. On the other side, some states are banning teachers from using the pronouns students prefer and even firing teachers for referring to themselves with gender-neutral honorifics like “Mx.”

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While the context is undoubtedly new, the U.S. Supreme Court may have provided the answer to this legal question more than 50 years ago, when it overturned a Black activist’s conviction for criminal contempt after she insisted on being referred to as “Miss.” The Court’s reasoning offers powerful insight into how it might view the debate over pronouns today. 

In the 1960s, Mary Hamilton was one of just a handful of women in leadership positions in the Congress of Racial Equality, or CORE, which pioneered the use of nonviolent direct action to protest racial segregation in the South. Several times, police arrested Hamilton for her role in CORE protests and civil disobedience.

After one such arrest in 1963 in Alabama for protesting, Hamilton opted to testify on her own behalf. 

When the prosecutor began questioning her, he addressed Hamilton as “Mary.” At that time, a white woman testifying in open court would have been called Miss or Mrs., but referring to Black adults as “girl,” “boy,” or by their first names was common in the South as a way to reinforce racial hierarchy. The practice reflected how segregation extended into the day-to-day and the anodyne—no exchange was too minor to concede an inch of white supremacy.

Because of this custom, Hamilton instantly perceived the intended slight in how the white prosecutor addressed her. She refused, however, to concede the indignity, instead telling him, “My name is Miss Hamilton, please address me correctly.”

The prosecutor continued his questions without even acknowledging Hamilton’s request. “Who were you arrested by, Mary?” he asked.

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“I will not answer,” Hamilton responded, “unless I am addressed correctly.”

Hamilton’s insistence on the same dignity the prosecutor routinely showed to white women who sat in the witness seat was a proud act of defiance, and everyone in the courtroom knew it. Immediately the judge declared Hamilton in contempt of court and sentenced her to a $50 fine—and five days in jail.

Hamilton served her jail sentence, but she did not accept her punishment. With the help of lawyers from the NAACP Legal Defense and Educational Fund, she appealed her conviction to the Alabama Supreme Court. Reversing Hamilton’s conviction would have upended the segregationist status quo, something the court refused to do. Instead, it found that the prosecutor had done nothing wrong because Hamilton’s legal name was “Mary Hamilton”—that is, the honorific “Miss” did not appear on her birth certificate. 

The state justices disregarded the reality that white women were afforded the courtesy of being called “Miss,” instead employing a type of formalistic legal reasoning that courts had perniciously deployed to justify segregation and white supremacy for decades. Most infamously, in 1896, the U.S. Supreme Court’s decision upholding separate but equal accommodations in Plessy v. Ferguson reasoned that segregation was not unfair to Black Americans because both Black and white people were separated from each other. The Alabama court’s decision in the Hamilton case, like Plessy before it, relied on technical truths that belied the lived reality of a race-based caste system.

Hamilton appealed again, this time to the U.S. Supreme Court. By 1964, the Court had renounced its formalistic way of thinking about the race line. A six-justice majority reversed Hamilton’s conviction without so much as scheduling oral argument in the case, the judicial equivalent of giving Alabama the back of the hand.

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Though the Court did not write an opinion in Hamilton’s case, it provided clues as to its reasoning. Hamilton’s lawyers had argued that her conviction violated both the Due Process and Equal Protection Clauses of the 14th Amendment. While Justice Hugo Black noted that he agreed with the due process argument, the other five justices in the majority reversed without comment. The implication was that they found the equal protection argument compelling, a victory that Hamilton’s lawyers trumpeted. 

Throwing out Hamilton’s conviction sent a powerful message that racial segregation and racial discrimination would not be tolerated in America’s courthouses any more than in its schoolrooms. If white women were entitled to be referred to by an honorific, so too was Hamilton. The First Amendment did not protect the prosecutor’s refusal to extend equal courtesy to Hamilton any more than it would protect him from hanging a “Colored Only” sign by her seat.

More than a half century later, much has changed in our language. Social interactions in 2023 are much more casual than they were in 1963; it’s rare to use honorifics like Ms. or Mr. outside of professional settings. 

But there are parallels between Hamilton’s case and the intentional misgendering of transgender people. Language matters. As Hamilton’s case shows, rigid adherence to what may be printed on a person’s birth certificate is not a neutral choice and often ignores the reality of how we refer to each other.

Calling cisgender people—but not transgender people—by the name and pronouns that reflect the gender they know themselves to be diminishes the dignity of transgender people and creates a double standard. Under some circumstances, such as an employer who persistently and intentionally misgenders an employee, that double standard can be a form of discrimination—one that’s not shielded by the Constitution. In the case of government officials, such conduct may even violate the Constitution.

At a time when the U.S. is witnessing an onslaught of anti-LGBTQ laws, arguing about honorifics and pronouns may seem unimportant. Mary Hamilton’s bravery reminds us that it is anything but.

Ria Tabacco Mar is a civil rights lawyer. Formerly of the NAACP Legal Defense and Educational Fund, she is now director of the ACLU Women’s Rights Project. Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here.

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