Court deals setback to state misgendering law
A state appeals court says California violates the freedom of speech of nursing home staff members by making it a crime for them to deliberately use the wrong pronouns when referring to transgender patients. But the court upheld another section of the law requiring the homes to place transgender patients in rooms that match their gender identity, and said the state could take other steps to require staff to respect the patients’ decisions.
“Misgendering” a person, by knowingly referring to a transgender female, for example, as “him” or “Mr.,” can be “disrespectful, discourteous, or insulting,” the Third District Court of Appeal in San Francisco said Friday. “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view.”
The court suggested it could uphold a more narrowly drawn law that applied only to intentionally insulting or harassing use of misgendered pronouns and did not include criminal penalties.
The 2017 law, SB219, sponsored by Sen. Scott Wiener, DSan Francisco, and supported by LGBTQ advocates, prohibited staff members of longterm care facilities from knowingly and repeatedly referring to a resident with a name or pronoun different from those chosen by the resident. Violations could be prosecuted as misdemeanors punishable by up to 180 days in jail and a $2,500 fine.
The law also required the facilities to assign rooms based on a resident’s gender identity, unless the resident requested a
different assignment.
California law already prohibited discrimination based on sexual orientation or gender identity. But supporters of Wiener’s bill 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 law was challenged by an advocacy group called Taking Offense. It argued that the ban on misgendering unconstitutionally required some nursing home staff to convey messages that violated their personal beliefs, and the room assignment provision granted rights to transgender patients that were not provided to others.
A Sacramento County judge upheld the entire law. But the appeals court said the misgendering provision went too far by applying to comments that were not necessarily discriminatory or harassing, and did not even have to be made in the patient’s presence.
“We recognize the Legislature’s legitimate and laudable goal of rooting out discrimination against LGBT residents,” Justice Elena Duarte
said in the 30 ruling. But SB219, she said, punishes “the kind of isolated remarks not sufficiently severe or pervasive enough to create an objectively hostile work environment.”
“To not call one by the name
one prefers or the pronoun one prefers is simply rude, insulting and cruel,” Justice Ron Robie said in a separate opinion. The Legislature’s “laudable goal,” he said, “can be accomplished in other ways.”
Duarte said the law’s other provision, requiring patients to be housed in rooms consistent with their gender identity unless they request otherwise, confers no special rights on transgender patients.
Wiener, the law’s author, said the state must appeal the ruling on misgendering.
“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.”
A lawyer for the Taking Offense group could not be reached for comment.