Last week, the California Supreme Court agreed to decide the constitutionality of a state law threatening healthcare workers with fines and jail time for misgendering transgender-identified nursing home patients
Senate Bill 219, signed by former Governor Jerry Brown back in 2017, was strongly opposed by the California Family Council for violating free speech rights. Last July, the State Court of Appeal agreed and struck down the pronoun provision of the law as illegal. The state’s highest court will now make the final decision.
Attorney David Llewellyn, Jr. filed the lawsuit against SB 219 on behalf of a group called Taking Offense, a month after the law went into effect in 2018 and the case has been winding through the state court system ever since. Specifically the law “prohibits staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and pronoun.”
Llewellyn challenged that provision of the law because it violated staff members’ “rights to free speech, free exercise of religion, and freedoms of thought and belief.” California judges on the Third Appellate District Court of Appeals concurred writing the pronoun provision of the law was a “content-based restriction of speech that does not survive strict scrutiny.”
California Family Council Director of Capitol Engagement Greg Burt made similar arguments in committee hearings as SB 219 went through the legislative approval process.
“How can you believe in free speech, but think the government can compel people to use certain pronouns when talking to others,” Burt asked members of the Assembly Judiciary Committee during his testimony in 2017. “Compelled speech is not free speech. Can the government compel a newspaper to use certain pronouns that aren’t even in the dictionary? Of course not, or is that coming next?”
“Those proposing this bill are saying, ‘If you disagree with me about my view of gender, you are discriminating against me,’” Burt testified. “This is not tolerance. This is not love. This is not mutual respect… True tolerance, tolerates people with different views. We need to treat each other with respect, but respect is a two-way street. It is not respectful to threaten people with punishment for having sincerely held beliefs that differ from your own.”
But the bill’s author, Senator Scott Wiener (D – San Francisco), sees it differently. He told the San Francisco Chronicle last July that, “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 Monday. “And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home.”
The state Court of Appeals judges agreed with Wiener that misgendering is rude, just not criminal harassment. “We recognize the Legislature’s legitimate and laudable goal of rooting out discrimination against LGBT residents of long-term care facilities,” the decision stated. “But the Attorney General has not shown that criminalizing occasional, off-hand, or isolated instances of misgendering, that need not occur in the resident’s presence and need not have a harassing or discriminatory effect on the resident’s treatment or access to care, is necessary to advance that goal.”
The appeals court did uphold another section of SB 217 that mandates long-term care facilities place transgender-identified patients in rooms according to their gender identity, not biology. This means elderly patients in California can’t demand their roommates be of the same sex.