A California appellate court ruled Friday that a provision in a state law passed four years ago mandating that certain health care workers use transgender pronouns is a violation of free speech, protected by the First Amendment.
CA’s Third District Court of Appeal upended SB 219, which in part forced nursing home workers to use preferred transgender pronouns and names for patients.
Notably, violators of the law “could be charged with a misdemeanor and subject to punishment of a $1000 fine, or even up to one year in jail,” according to California Family Council.
LGBT site The Washington Blade reported:
The Court, in a unanimous 3-0 decision, struck down this key provision of the LGBTQ Long-Term Care Facility Residents’ Bill of Rights, created by SB 219 in 2017, authored by Senator Scott Wiener (D-San Francisco) and sponsored by Equality California. The Court upheld the provision in the law that requires nursing homes to place transgender patients in rooms that match their gender identity.
Here’s a pertinent portion of the law, according to California Legislative Info (emphasis added):
Among other things, the bill would make it unlawful, except as specified, for any long-term care facility to take specified actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status, including, among others, willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns, or denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or discharging or evicting a resident from a facility.
The pronoun provision, the court said, is a “content-based restriction of speech that does not survive strict scrutiny” and “burdens speech more than is required.”
“The pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment,” wrote Associate Justice Elena Duarte, according to The Associated Press. The judge italicized “potentially” and “necessarily.”
Refusing to use preferred transgender pronouns “may be disrespectful, discourteous, and insulting,” said Judge Duarte, but it allows others “to express an ideological disagreement with another person’s expressed gender identity.”
Taking Offense challenged the law back in December 2017, according to California Family Council. The case was brought by Llewellyn Law Office Attorney David Llewellyn “on behalf of several unnamed clients and is challenging the law as ‘unconstitutionally vague and overbroad,'” the site noted.
SB 219 sponsor Democratic Senator Scott Wiener (San Francisco) said in a statement that the court’s decision “is disconnected from the reality facing transgender people,” adding that “misgendering” someone is “straight-up harassment.”
“The Court’s decision is disconnected from the reality facing transgender people. Deliberately misgendering a transgender person isn’t just a matter of opinion, and it’s not simply ‘disrespectful, discourteous, or insulting.’ Rather, it’s straight-up harassment,” the senator said. “And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home. This misguided decision cannot be allowed to stand.”