July 30 (UPI) — California’s 3rd District Court of Appeal has struck down a provision in a state law that made it a crime for staff members at nursing homes to “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”
In a 3-0 ruling, the court says the provision — which was enacted in 2017 by the state Legislature as part of the Lesbian, Gay, Bisexual and Transgender Long-Term Care Facility Residents’ Bill of Rights — violates the employees’ freedom of speech.
Intentionally using the wrong name or pronouns was a misdemeanor with a maximum punishment of 180 days in jail and a $2,500 fine.
“We recognize that misgendering may be disrespectful, discourteous and insulting and used as an inartful way to express an ideological disagreement with another person’s expressed gender identity,” Justice Elena Duarte wrote for the court. “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth.”
Duarte also wrote that the provision restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination and harassment on the basis of sex.
In a concurrence, Justice Ronald Robie wrote “to not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting and cruel.”
However, he also said that instead of mandating employers ensure the use of proper pronouns in the workplace, the California Legislature “unwisely” made their misuse a crime.