LGBTQ+ rights activists in California say they will challenge an appeals court decision that struck down part of a state law meant to protect LGBTQ+ nursing home residents by prohibiting staff from these care facilities from using anything other than the resident’s self-determined name and pronouns.
The law, passed in 2017, is supposed to protect residents from discrimination due to sexual orientation or gender identity. However, the state's Third District Court of Appeal ruled Friday that the name and pronoun section of the law violated the free speech rights of those facilities' employees.
“The law compels long-term care facility staff to alter the message they would prefer to convey,” the court explained.
Associate Judge Elena Duarte wrote on behalf of the court, “We recognize that misgendering may be disrespectful, discourteous, and insulting.” But Duarte wrote that misgendering “does indeed convey an ideological message,” making it protected speech. The “pronoun provision” of the law “is a content-based restriction of speech that does not survive strict scrunity,” she said.
The court let stand another portion of the law, which “makes it unlawful for long-term care facilities or facility staff to assign, reassign, or refuse to assign rooms, where such decisions are based on gender, other than in accordance with a transgender resident’s gender identity, unless at the transgender resident’s request,” the ruling stated.
The challenge to the law came from a person identified as “Taking Offense,” who contended that the pronoun section violated staffers' rights to free speech and free exercise of religion, and that the section on room assignments discriminated against nontrans residents. A trial court dismissed the complaint in its entirety.
Democratic State Sen. Scott Wiener, who authored the law, objected to the appeals court's ruling, writing on Twitter that misgendering is more than just “disrespectful, discourteous, and insulting.” He wrote, “It’s harmful erasure.”
“The Court’s decision is beyond disappointing, especially for our state’s transgender and nonbinary seniors. Let’s be clear: refusing to use someone’s correct name and pronouns isn’t an issue of free speech — it’s a hateful act that denies someone their dignity and truth,” Rick Chavez Zbur, executive director of Equality California, said in a statement.
He added that misgendering can lead to depression and suicide.
“And older LGBTQ+ people face feelings of isolation, poor mental health, and extreme vulnerability to communicable diseases like COVID-19,” said Zbur. “California’s nursing home patients deserve better than this — and we’ll be fighting until this decision is overturned.”