State appeals court says rights of care home staffers violated by misgendering law

State appeals court says rights of care home staffers violated by misgendering law


A state appeals court says California violates the freedom of speech of nursing home staff members by making it a crime for them to deliberately use the wrong pronouns when referring to transgender patients. But the court upheld another section of the law requiring the homes to place transgender patients in rooms that match their gender identity, and said the state could take other steps to require staff to respect the patients’ decisions.

“Misgendering” a person, by knowingly referring to a transgender female, for example, as “him” or “Mr.,” can be “disrespectful, discourteous, or insulting,” the Third District Court of Appeal in San Francisco said Friday. “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view.”

The court suggested it could uphold a more narrowly drawn law that applied only to intentionally insulting or harassing use of misgendered pronouns and did not include criminal penalties.

The 2017 law, SB219, sponsored by Sen. Scott Wiener, D-San Francisco, and supported by LGBTQ advocates, prohibited staff members of long-term care facilities from knowingly and repeatedly referring to a resident with a name or pronoun different from those chosen by the resident. Violations could be prosecuted as misdemeanors punishable by up to 180 days in jail and a $2,500 fine.





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