California no doubt leads the nation in protecting the rights of lesbian, gay, bisexual and transgender (LGBT) residents living in senior-care facilities. But now, one of the key provisions of a four-year-old landmark LGBT-senior protection bill has been struck down by a state appellate court. The court ruled it is no longer a criminal offense to refer to a long-term care occupant by a name or pronoun the resident does not prefer.

Senate Bill 219 was authored by state Senator Scott Weiner (D-San Francisco), whom the Bay Area Reporter identified as gay. It was enacted in 2017 and penalizes health care workers who “willfully and repeatedly” fail to address residents by the gender pronouns they prefer when they are “clearly informed of the (preferred) name and pronoun.” This practice is called “misgender,” and the court opinion refers to it as the “pronoun provision.” Violations of the law are misdemeanors that carry a $1000 fine or up to a year in jail, a punishment that would likely be given only to repeat offenders who refuse to change their behavior.

In order to assure that employees are aware of the preferences of all patients, the bill also requires senior-living facilities to keep records of the gender identity of all patients as well as their preferred pronouns.

The challenged bill added two provisions to the Health and Safety Code of the “LGBT Long-Term Care Facility Residents’ Bill of Rights.” The first, the “pronoun provision,” prohibits staff members from “willfully and repeatedly” referring to a resident by a name or pronoun the resident does not prefer. The second challenge was to the “room assignment provision,” which made it unlawful to assign rooms in any manner that is not based on the gender identity of residents.” This provision was allowed to stand.

In 2018, a group called “Taking Offense,” described in filings as “an unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the last year,” challenged the law, seeking a writ of mandate. No residents are named in the suit because “Taking Offense” wishes to protect the plaintiffs’ privacy. In filings, the plaintiff/appellant group called the “pronoun provision” “unconstitutionally vague and overbroad and said it violated staff member’s freedom of speech, religion…thought and belief.”

A three-judge panel of the Court of Appeal for the Third District of California unanimously agreed with Taking Offense on July 16 when it struck the “pronoun provision” as unconstitutional. Justice Elena J. Duarte wrote the opinion, holding that the “pronoun provision” violated employees’ First Amendment rights to freedom of speech and religion. It was called “a content-based restriction of speech that does not survive strict scrutiny.”

The court, however, allowed the “room assignment provision,” to stand. Taking Offense argued that non-LGBT residents are not afforded an equal opportunity to request a roommate who does not “conform to the resident’s gender identity” and that it violated their constitutional right to freedom of association. Duarte disagreed with the plaintiff’s contention that the “room assignment provision” created an “unconstitutional gender-based classification.”

The court opinion begins with the strong presumption to uphold the constitutionality of legislative acts, requiring challengers to meet the “heavy burden” that their claims are “clearly, positively, and unmistakably” unconstitutional. Challenges to the First Amendment’s freedom of speech clause must show the speech is content-based, not content-neutral. Citing a long series of freedom of speech precedents, Duarte concluded that the speech in the “pronoun provision” is not content-neutral because “it draws a distinction between what is and what is not permissible based on the content of what is said.”

She also reasoned that “an enforcement authority” would have to analyze the content of the speech in order to spot a violation of the “pronoun provision.” She found that it was unconstitutional after applying a strict scrutiny test. “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,” she wrote, “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view.”

Duarte also found that the “pronoun provision” is not the least restrictive means of meeting the government interest in eliminating harassment of LGBT seniors and freeing them from discrimination. She acknowledged studies that showed many seniors avoid necessary care and services because they are both LGBT and members of underrepresented groups. However, the court still found the “pronoun provision” to be “overinclusive” because it restricts more speech than necessary due to its criminalization of “even occasional, isolated, off-hand instances of willful misgendering.”

Turning to the “room assignment provision,” the court did not agree with Taking Offense’s assertion that LGBT residents received “special rights.” It said that plaintiffs failed to show how a room assigned to LGBT patients “is any different from the right afforded to non-transgender residents.”

Senator Weiner, who wrote the bill, expressed disappointment and anger at the ruling. In a July 19 statement, he said, “The court’s decision is disconnected from the reality facing transgender people. Deliberately misgendering a transgender person isn’t just a matter of opinion and it’s not simply disrespectful, discourteous or insulting. Rather, it’s straight-up harassment. And it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home. This misguided decision cannot be allowed to stand.”