‘Anti-Misgendering’ Law Struck Down in California

A California appeals court struck down a state law that penalized elder-care workers for using incorrect pronouns when referring to elderly long-term care patients.

QUICK FACTS:
  • The ruling came down from the Court of Appeal of the State of California, 3rd Appellate District.
  • The July 16 decision in the case—Taking Offense v. State of California—sided with First Amendment speech protections over activists, according to The Epoch Times.
  • The three-judge ruling was unanimous, representing an upset for the transgenderism movement.
  • It will affect the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights.
WHAT THE COURT SAID:
  • The court said that while it “recognized the Legislature’s legitimate and laudable goal of rooting out discrimination against LGBT residents of long-term care facilities,” they agreed with Taking Offense that “the pronoun provision, is a content-based restriction of speech that does not survive strict scrutiny.”
  • “The pronoun provision—whether enforced through criminal or civil penalties—is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex. Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering—provided there has been at least one prior instance—without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.”
  • The attorney general “has not shown that criminalizing occasional, off-hand, or isolated instances of misgendering, that need not occur in the resident’s presence and need not have a harassing or discriminatory effect on the resident’s treatment or access to care, is necessary to advance that goal.”
BACKGROUND:
  • The California Legislature added to the state’s Health and Safety Code in 2017.