State’s top court to weigh misgendering patients
The California Supreme Court agreed Wednesday to decide whether nursing home workers can be criminally prosecuted under state law for deliberately and repeatedly using the wrong terms when referring to transgender patients, terms like “him” or “Mr.” for a transgender woman.
The justices unanimously granted review of the state’s appeal of a lower-court ruling in July that said the 2017 law, though well-intended, violated freedom of speech by making it a crime to intentionally “misgender” patients. Violations would carry misdemeanor penalties of up to six months in jail and a $2,500 fine.
While agreeing to decide whether the 2017 law is valid, the state’s high court said the lower-court ruling would remain in the law books while the case was pending, and trial judges in different counties could decide whether to follow that ruling and refuse to enforce the criminal penalties.
The legislation, SB219, was sponsored by Sen. Scott Wiener, D-San Francisco. While California already prohibited discrimination based on sexual orientation or gender identity, LGBTQ advocates said transgender seniors remained vulnerable to mistreatment in nursing homes.
A 2013 survey, cited in a legislative staff analysis, found that nearly 60% of elderly transgender residents in San Francisco lived alone, and many said they lacked family support networks while living in care facilities.
The suit was filed by a group called Taking Offense. It argued that the ban on misgendering required some nursing home staff to convey messages that violated their personal beliefs.
The state’s Third District Court of Appeal in Sacramento agreed in July, overturning a Sacramento County judge’s decision to uphold SB219.
“We recognize the Legislature’s legitimate and laudable goal of rooting out discrimination against LGBT residents,” Justice Elena Duarte said in the 3-0 ruling. But the state law, she said, punishes “the kind of isolated remarks not sufficiently severe or pervasive enough to create an objectively hostile work environment.”
She noted that the law’s criminal penalties could apply to comments that were not necessarily discriminatory or harassing, and did not have to be made in the patient’s presence.
The appeals court upheld another section of the 2017 law that requires nursing homes to place transgender patients in rooms consistent with their gender identity, rejecting arguments by Taking Offense that the provision granted those patients special and unwarranted rights.
State Attorney General Rob Bonta urged the state’s high court to review the case, with support from patients’ advocates and LGBTQ groups. Samuel Garrett-Pate, spokesperson for the advocacy group Equality California, said Wednesday he was pleased with the grant of review but dismayed that the court would allow trial judges to apply the appellate ruling in the meantime.
“LGBTQ seniors were protected from harassment on the basis of their gender identity until this outrageous ruling, which threatens to leave them unprotected,” Garrett-Pate said. He said many other laws make repeated and targeted harassment a crime, and SB219 was drafted to protect an especially vulnerable population.
Wiener said in a statement that the lower-court ruling “authorizes harassment and bullying of frail trans seniors in nursing homes — seniors who are least likely to be able to stick up for themselves. That ruling must be overturned.”
Lawyers for Taking Offense could not be reached for comment.
The case is Taking Offense vs. State of California, S270535.