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California Court Strikes Down Law Penalizing Misgendering

California Court Strikes Down Law Penalizing Misgendering

You have the right to free speech. I have the right to free speech. The First Amendment protects speech, including perceived hateful speech.

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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Antifundamentalist | July 19, 2021 at 3:19 pm

I’m not medical, but it seems to me that In the context of Health Care, short-term, long term, or anything in between – it is absolutely ludicrous to insist on actual misgendering of people. Seriously, if a transman comes in with abdominal pain, “he” could die of an ectopic pregnancy simply because the physician reading the chart can’t tell that “he” has ovaries! This is one place where accuracy needs to be insisted upon by those providing the care.

    The “transform the world” movement’s response is that if anyone comes in with abdominal pain the physician should check for ectopic pregnancy as a possible cause. It’s wrong for the physician to assume, without any basis, that the patient has no ovaries merely because he is a man. That’s a narrow-minded bigoted view. It’s a “fact”, they say, that some men have ovaries (and some women lack them), so physicians had better take that into account whenever they treat any man. Check for ovaries; don’t just assume.

    Which is totally insane.

    stevewhitemd in reply to Antifundamentalist. | July 19, 2021 at 4:47 pm

    That has actually happened, and more than once — a woman identifying as a man persuaded health care providers that she was a man, and thus the providers missed that the woman was pregnant. There are cases reported in the medical literature and more can be found with your favorite search engine.

    People are either male or female and this is solely determined by genetics. If someone wants to pretend to be something they aren’t that’s fine, but they don’t have the right to force people or society to embrace their delusions.

2smartforlibs | July 19, 2021 at 3:45 pm

This was the law at one time. What was the science behind it? The left claims to be the party of science until science enters the debate.

    Milhouse in reply to 2smartforlibs. | July 19, 2021 at 4:57 pm

    The law never claimed to have science behind it. Why should it? How many laws are based on science? This is a law against harassing and tormenting a person who is vulnerable and powerless against you; a patient in a long-term care facility who is under your care. Doing so is unprofessional, malicious, and ought not to be tolerated by the facility’s management. It’s no different from the staff calling patients demeaning names, or slurs. Imagine that you’re a black patient at such a facility, with the prospect of spending the rest of your life there, and some orderly insists on calling you “boy”; or you’re a woman and he keeps addressing you in ways that take sexual liberties. It’s wrong and you shouldn’t have to put up with it. The management should make clear to its employees that it won’t put up with such behavior either. But the court is probably right that it’s not the government’s place to say so. Let the bully get fired, but don’t subject him to criminal penalties.

      lichau in reply to Milhouse. | July 19, 2021 at 5:37 pm

      Exactly. If Bruce wants to be called Alice and your employer insists that you call him (biologically Alice and you refuse–you can go refuse elsewhere. But it is none of Government’s business.

        Edward in reply to lichau. | July 20, 2021 at 8:24 am

        But you forget that the government made the “misgendering” its business by making it a criminal act to “misgender” a resident of such a facility. All this decision does is eliminate the criminalization. The employer can continue to insist the employee call Harry Sally and ensure the employee refers to she instead of he (but please spare us the “their” adjective in lieu of he or she) and you can still be fired for refusing. Now the employee can’t be prosecuted for using the allegedly wrong “pronoun”.

This trans crap is stupid

Speech goes with what the speaker feels is right, not the audience. If you can’t say what you feel is right, there is no market of ideas.

Its unbelievable, the noxious and brazenly obnoxious, totalitarian edicts that the vile Dhimmi-crats — the most manifestly totalitarian idiots, in the U.S. — want to install, as part of their Stalinist/Maoist speech codes. Criminalize criticism of the supremacist ideology of “Submission;” criminalize “misgendering” of male tranny narcissists; criminalize any opinions or viewpoints that reject Dhimmi-crat orthodoxies.

Nuts, and here I was going to use: “His Royal Highness, Son of Ra, Protector of the East, West, North, and South, Eye of Horus and Teeth of Cerberus” as my preferred pronoun.

    Anonymous Bosh in reply to lhw. | July 19, 2021 at 6:21 pm

    Ppl got annoyed when I insisted my pronoun was “master,” their argument being something along the lines of “but we all know that isn’t your real pr0noun…”

    In related news: Former PM of Denmark (home of the Jyllands-Posten “mo-bomb-head” cartoon controversy) now Facebook Oversight Board member Helle Schmidt says “Free speech is not an absolute human right. It has to be balanced with other human rights.”

    What human rights might those be, one wonders…

      Anonymous Bosh in reply to Anonymous Bosh. | July 19, 2021 at 6:34 pm

      Self addendum: What kind of speech should not be free? Well, in the article nearby on “Justice for Palestine,” a counterprotester was harassed because he “had offended people in the crowd by uttering the word ‘Israel.'” Gonna be a great world when we lose our rights.

      Take a knee, beg, good boy, girl, whatever. We are not amused.

I’m surprised a California court did this.

    hrhdhd in reply to Idonttweet. | July 19, 2021 at 5:12 pm

    Kinda shows how ridiculous the idea was.

    gospace in reply to Idonttweet. | July 19, 2021 at 6:52 pm

    You and me both. And likely a lot of others. Methinks some judges may be coming to the realization they’ve already gone too far.. We can only hope.

    lichau in reply to Idonttweet. | July 19, 2021 at 8:44 pm

    Living in CA, I agree. However, note that the law only applied to long term care facilities. The decision might well only apply there as well.
    Health spa’s? Ice cream parlors? Could be another matter.
    As a general rule, everything in CA is either mandatory or forbidden.

      4rdm2 in reply to lichau. | July 20, 2021 at 6:33 am

      “Sign, sign, everywhere a sign
      Blockin’ out the scenery, breakin’ my mind
      Do this, don’t do that, can’t you read the sign?“

      To think, at one point that was a hippie liberal protest thing … now they’re the ones putting up the signs.

George Orwell reigns

I’m in agreement with idonttweet

These so-called “trans” people want something that goes way beyond equal protection and equal rights. They are the very bullies they claim to be against, and they demonstrate hateful leftist projection to a tee. Entitled and arrogant to the extreme.

I’m not a J.K. Rowling fan at all, but look at the horrible deluge of death threats she’s received from the “trans community” simply for saying biological men who claim to be a woman should be kept out of women’s bathrooms and locker rooms-

And they think that such rhetoric and abuse advances their cause.

Oh no! My pronouns She-It just took a hit!

This is very disappointing. If I ever go into a long-term care facility, I intend to tell them that my preferred pronoun is “His Royal Highness.”

Now I can’t make them call me that. Darn!

“…the sex the person was assigned at birth.”

Can we stop saying this? It’s not like the baby pops out and the doctor or the parents go, “Oh, let’s make this baby a boy!” Or “Our first baby was a boy, so let’s make this one a girl!” The baby is whatever it is, nothing is “assigned.”

henrybowman | July 19, 2021 at 7:15 pm

If you recall, this was exactly the hill the then-little-known Jordan Peterson chose to die on (but ended up thriving instead).

    The conflation of sex and sex-correlated gender (e.g. sexual orientation) in order to normalize trans/homosexuals was the first predictor of liberals… they had me at selective and cannibalized-child (the wicked solution)… forcing civilized society onto a progressive path and grade.

The transgender spectrum banner added black, but still excludes brown, and indulges, normalizes a gay pride in the exclusion, shredding of white under politically congruent (“=”) policy and a Pro-Choice religion that denies women and men’s dignity and agency, and reduces human life to property. One step forward, two steps backward. #HateLovesAbortion

I’m just going to call them all “it”. Like it or lump it.

So can we finally call Michelle Obama “he”?

E Howard Hunt | July 20, 2021 at 12:08 am

Stop all the whining already. Person up and do something about it.

Proscribed speech is also against the first amendment