News and Commentary

California Moves To Jail People Who Use the Wrong Pronoun

California legislators are set to vote this week on a bill that could criminalize using the wrong pronoun to refer to a transgender individual.

The bill, which passed the California state senate in May, has moved into the California state assembly as part of a slew of gender-based “anti-discrimination” laws designed to protect California residents who don’t believe they fall into the gender binary.

Titled the “Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents Bill of Rights,” the new law would allow transgender individuals living in care facilities like nursing homes to use bathrooms in line with their preferred gender (not necessarily their biological gender), and would punish any caregiver who “knowingly” uses the wrong gender pronoun to refer to one of their patients.

Use “he” instead of “she” and you could face a $1,000 fine and up to a year in jail for gender-based discrimination and harassment. The law, which says “knowingly,” does not seem to identify a specific standard, leaving interpretation of motive up to authorities.

Unsurprisingly, free speech advocates and faith-based care facilities are upset about the development, partly because they would be compelled to act in a way that defies their religious dogma and partly because there’s absolutely no way the state will limit the bill’s protections just to care facilities.

“How can you believe in free speech, but think the government can compel people to use certain pronouns when talking to others?” a representative of the California Family Council testified to the assembly late last week.

The state senator who authored the bill, Scott Weiner, was particularly vocal when it came to exempting religious organizations from the law: he wasn’t going to do it because, he claimed, religion has no place in public life.

“Everyone is entitled to their religious view,” Weiner said. “But when you enter the public space, when you are running an institution, you are in a workplace, you are in a civil setting, and you have to follow the law.”

Fortunately, in this case, the law — at least, the larger law and the Constitution — may be on California residents’ side.

According to law professor Eugene Volokh, the law itself seems too vague, and it’s likely California wouldn’t strictly interpret the law and limit their enforcement to nursing home caretakers only. Its “pretty unlikely that, if this law is enacted, such prohibitions would be limited just to this scenario,” he told National Review.

That would mean California could face litigation once they start enforcing the rule, and precedent isn’t on California’s side.