The California Third District Court of Appeals ruled 3-0 that a 2017 state law requiring employees at long-term care facilities to use patients’ “preferred” pronouns violates First Amendment free speech rights.
Taking Offense, an unincorporated association, filed the lawsuit challenging part of California’s Health and Safety Code that requires health facility employees to deny a person’s biological sex and acknowledge a “chosen” gender or pronoun of a patient. Employees who refused to do so would have faced criminal charges for “misgendering” a resident. Violations could be prosecuted as misdemeanors and violators could face 180 days in jail and a $2,500 fine.
In 2017, the California legislature passed SB 219, which added the “Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights” to its Health and Safety Code. A key stipulation of the bill prohibited “staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and pronoun.”
In Taking Offense v. California, the California Court of Appeals rejected the pronoun provision, saying it “restricts more speech than is necessary” and “the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”
