A California appeals court has overturned part of a 2017 law that created speech crimes, forcing nursing home staffers to violate their beliefs by using the transgender pronouns of residents.
The Third District Court of Appeals, ruling unanimously 3-0, overturned the part of the law that bars employees of long-term care facilities from repeatedly using anything other than residents’ preferred names and pronouns.
That ban violates employees’ rights to free speech, the court ruled Friday.
“The law compels long-term care facility staff to alter the message they would prefer to convey,” the court reasoned, adding that the ban “burdens speech more than is required” to reach the state’s objective of eliminating discrimination.
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Referring to residents other than by their preferred gender “may be disrespectful, discourteous, and insulting,” Associate Justice Elena Duarte wrote on behalf of the three-judge panel. But it can also be a way “to express an ideological disagreement with another person’s expressed gender identity.”
“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,” she wrote, adding italics to “potentially” and “necessarily.”
Justice Ronald Robe concurred in his opinion, writing the state legislature went too far in trying to eliminate the misuse of pronouns.
“Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime,” Robie wrote. “When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation.”
LGBT advocates said they would fight the ruling without being specific on what that would mean.
California State Sen. Scott Wiener said deliberately using the wrong name or pronoun is “straight-up harassment” and “erases an individual’s fundamental humanity.”
Rick Chavez Zbur, executive director of Equality California, which bills itself as the nation’s largest statewide LGBTQ+ civil rights organization, said using the wrong name and pronoun is “a hateful act that denies someone their dignity and truth” and can cause depression and even suicides.
The California Attorney General’s office said it is reviewing the decision and considering its next steps.
The appeals court upheld a second challenged portion of the law prohibiting facilities or employees from assigning rooms based on anything other than a transgender resident’s gender identity.
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