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Tuesday, July 20, 2021


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C.A. Invalidates Statute Criminalizing Use of Pronoun Disfavored by Transgender Patient


By a MetNews Staff Writer


The Court of Appeal has struck down as unconstitutional a statutory provision that criminalizes a failure of a staff member at a long-term care facility to refer to a patient by a personal pronoun other than the one that person prefers.

The Third District, in an opinion filed Friday, invalidated Health and Safety Code §1439.51(a)(5) which prohibits “[w]illfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns” at such facilities. A violation of that provision, under another section, is a misdemeanor, punishable by a fine of up to $2,500 or by imprisonment for a term not to exceed six months.

“[W]e recognize the State has a compelling interest in eliminating discrimination against residents of long-term care facilities,” Justice Elana Duarte wrote for unanimous three-justice panel. “However, we conclude the pronoun provision is not narrowly tailored to achieve a compelling government objective because it burdens speech more than is required to achieve the State’s compelling objective. Accordingly, the provision does not survive strict scrutiny.”

The “pronoun” section was challenged by an unincorporated association known as “Taking Offense.” It also contested the constitutionality of a provision requiring that a resident of a long-term facility be given a room assignment in accordance with the gender with which the person identifies, but the panel found that requirement to be lawful.

Content-Oriented Prohibition

While the Office of Attorney General argued that §1439.51(a)(5) is content-neutral, calling only for intermediate scrutiny, Duarte determined that it is content-based, subject to strict scrutiny—a test which, she said, it cannot pass. She explained:

“[T]he pronoun provision is content based on its face because it draws a distinction between what is and what is not permissible based on the content of what is said….If an employee’s speech repeatedly and willfully misgenders a long-term care facility resident, the speech is criminalized. If an employee’s speech does not misgender a resident, or if the employee misgenders the resident only once or unintentionally, the speech is not criminalized. To determine whether an employee has violated the pronoun provision, an enforcement authority must analyze the content of the speech…and determine whether the content of the speech runs afoul of the law. Moreover, the Legislature’s purpose in enacting the law was to prohibit staff from willfully and repeatedly misgendering a resident due to the harassing, discriminatory, or insulting nature of that speech; in other words, its communicative effect.”

(In a footnote, Duarte related: “ ‘Misgender’ refers to the systematic misuse of one’s preferred pronouns by another. )

Provision Is ‘Overinclusive’

Sec. 1439.51(a)(5), Duarte declared, is not narrowly drawn in order to achieve its objective, but is “overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.”

The jurist elaborated:

“Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering—provided there has been at least one prior instance—without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct. Using the workplace context as an analogy, the statute prohibits the kind of isolated remarks not sufficiently severe or pervasive to create an objectively hostile work environment….There is no requirement in the statute that the misgendering at issue here negatively affect any resident’s access to care or course of treatment. Indeed, there is no requirement that the resident even be aware of the misgendering.”

The room-assignment provision does not deny equal protection because both transgender and non-transgender residents have the same option: choosing an assignment in accordance with the person’s gender identity, Duarte said.

Acting Presiding Justice Harry E. Hull Jr., in a concurring opinion, said the room-assignment provision does not interfere with a resident’s “right of intimate association.”

Justice Ronald B. Robie, also authoring a concurring opinion, wrote:

“I concur fully in the majority opinion but write separately to express further thoughts on the use of pronouns. One’s name or the pronoun that represents that name is the most personal expression of one’s self. To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel. The impact of using inappropriate pronouns is even more offensive and hurtful when it occurs in an environment where one cannot choose the persons with whom one associates. The Legislature recognized this fact (as recounted in the opinion) but unfortunately chose a prophylactic remedy to eliminate misuse of pronouns that just went too far. Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. 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.”

The case is Taking Offense v. State of California, 2021 S.O.S. 4000.


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