California Court Strikes Down Law Penalizing Misgendering

California Court Strikes Down Law Penalizing Misgendering

The California Court of Appeal overturned a portion of California Code, Health and Safety Code – HSC § 1439.51 based on the First Amendment.

The law applies only to employees at long-term healthcare facilities

In Taking Offense vs. California, the plaintiffs challenged the portion that criminalizes misgendering a person:

• (a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status
• (5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.

“As we discuss at greater length post, we recognize the State has a compelling interest in eliminating discrimination against residents of long term care facilities,” said the justices. “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 court reminded people “the free speech clause protects a wide variety of speech a listener may find offensive, including insulting speech based on race, national origin, or religious beliefs”:

The pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment. As the Third Circuit Court of Appeals has recognized, “‘[w]here pure expression is involved,’ anti-discrimination law ‘steers into the territory of the First Amendment.’ ” (Saxe v. State College Area Sch. Dist., supra, 240 F.3d at p. 206.)

The left and right have to accept the fact that the First Amendment protects perceived hate speech.

That conclusion leads the court to content-based restrictions on speech.

The justices found the Attorney General’s arguments that the “pronoun provision is content neutral” did not persuade them:

Applying Reed, the 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. (See Reed, supra, 576 U.S. at p. 164.) If an speech repeatedly and willfully misgenders6 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 (McCullen, supra, 573 U.S. at p. 479 [law is content based where it requires enforcing authority to 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. (See, e.g., Family and Life Advocates, supra, __ U.S. at p. __ [138 S.Ct. at p. 2371] [requiring health care providers to inform women how to obtain state-subsidized abortions plainly alters the content of their speech].)

The Attorney General tried to persuade them to accept his argument because “the restriction on speech is derived from the individual resident, not the state, and therefore the statute does not reflect a state preference regarding what language is used.”

The justices said the Supreme Court rejected this argument in Tornillo, supra. It also applies in this case because “the government is compelling employees to give voice to the resident’s preferred pronoun where that pronoun expressly contradicts the message the employee would prefer to voice.”

Finally, the court shot down the Attorney General’s final argument: “the restriction on speech is content neutral because pronouns are merely stand-ins for nouns and are not ideological messages.”

The Attorney General and state legislature defeated that argument when they passed the law:

But the Legislature understood the importance of pronouns’ content and, thereby, their meaning, in this context, to the point that it passed a law criminalizing misgendering transgender residents of long-term care facilities. 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. 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. Consistent with the Legislature’s findings in enacting section 1439.51, we conclude misgendering does indeed convey an ideological message.

Again, everyone has the right to free speech. You have the right to call yourself whatever you want. You have the right to identify however you want.

I’ve called Caitlyn Jenner Caitlyn since she transformed and I use she and her. I will use whatever pronoun you want.

Those who do not use your preferred pronouns have a right not to use them.

Can we stop using the law and courts over this? Don’t we have other things to worry about? Is your life destroyed when someone calls you he instead of she?

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