Appellate Court rejects criminalizing mistaken referral to someone’s gender in long term care centers
The Third District Court of Appeal ruled that making it a crime to wrongfully refer to someone’s gender or using a dead name is overkill given that there are already laws on the books that protect lesbian, gay, bisexual, and transgender (LGBT) individuals from harassment and discrimination in a long term facility.
Deadnaming is the act of labeling a transgender individual by their birth name after their name has been changed as part of their gender transition.
“Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime,” Judge Ronald Robie wrote in the July 16 opinion. “When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation.”
“Taking Offense” sued the state over Senate Bill No. 219, which the California legislature enacted in 2017, alleging the law violated long-term care facility staff members’ rights to free speech, free exercise of religion, and freedoms of thought and belief, and is vague and overbroad.
But the trial court denied the petition.
“Proving a violation of this law, if it had survived this legal challenge, would have been tricky because of the way a facility could write it up or justify a room assignment,” said Rolling Hills Estates attorney Jeff Lewis. “There are lots of ways to create a paper trail.”
On appeal, Taking Offense asserted that the law granted transgender residents “special rights” to choose whether to be assigned a roommate according to the transgender person’s gender identity or the person’s assigned sex at birth while failing to recognize the same right of non-transgender residents.
The appellate court disagreed.
“We recognize that transgender residents possess a characteristic that non-transgender residents do not, namely, a biological sex at birth that differs from their expressed gender identity,” the opinion stated. “Nevertheless, we conclude transgender residents of long-term care facilities are similarly situated to non-transgender residents for purposes of the room assignment provision.”
If neither party appeals to the California Supreme Court, Lewis foresees that the state legislature could provide a second statute that’s more narrowly tailored.
“That’s the big unknown is what is the legislature going to do in response to this decision and whether or not either the losing party takes this up to the California Supreme Court,” he said.
NBC reported that advocates for LGBTQ rights will appeal the decision.
“The portion of the decision dealing with pronouns and deadnaming shows we’ve come a long way in terms of the courts recognizing the state does have a compelling interest in protecting people from having the wrong pronouns or wrong names,” Lewis said.
“That’s a huge leap for a conservative institutions like the courts to take. So, LGTBQ people might at first blush take this as a loss in terms of this decision but it’s truly a small step towards recognition of rights.”