The State of California Third District Court of Appeals ruled on Friday that a state statute requiring nursing home staff to use the correct pronouns for trans and nonbinary patients is a freedom of speech violation.
SB 219, also known as the LGBTQ Senior Bill of Rights, protects LGBTQ seniors in long-term care facilities from discrimination and mistreatment based on their sexual orientation and gender identity.
Wiener authored and passed SB 219 in 2017, and then-Governor Jerry Brown signed the bill into law.
The California Family Council stated that, 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 The Washington Blade report:
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 an excerpt from the California Legislative Info, a pertinent portion of the law with emphasis that 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 clause is a “content-based restriction of speech that does not survive strict scrutiny,” according to the court, and “burdens speech more than is required.”
Associate Justice Elena Duarte wrote, “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,” the judge italicized “potentially” and “necessarily,” the Associated Press reported.
Judge Duarte said, “Refusing to use preferred transgender pronouns may be disrespectful, discourteous, and insulting, but it allows others to express an ideological disagreement with another person’s expressed gender identity.”
The California Family Council stated that back in December 2017, taking Offense challenged the law, the site noted, “on behalf of several unnamed clients and is challenging the law as ‘unconstitutionally vague and overbroad,’” the case was brought by Llewellyn Law Office, Attorney David Llewellyn.
In a statement, SB 219 sponsor Democratic Senator Scott Wiener (San Francisco) said that the court’s decision “is disconnected from the reality facing transgender people,” adding that “misgendering” someone is “straight-up harassment.”
The senator said, “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, 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.”