California court shoots down law on use of preferred pronouns in long-term care facilities

Liberals can’t be happy about a new court ruling out of California.

Eugene Volokh of Reason magazine’s Volokh Conspiracy blog reports that the California Court of Appeal struck down last week a law that made it a criminal offense for staffers of long-term care facilities to refuse to refer to residents by their preferred pronouns. 

The ruling in the case, Taking Offense v. California, was handed down Friday.

The court said the law was unconstitutional on the grounds that it violated the First Amendment right to free speech.

The law

According to Volokh, the law in question, Cal. Health & Safety Code s 1439.51(a)(5), states in part:

[I]t shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s … gender identity[ or] gender expression …: Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.

In its ruling, the court explained that the law constitutes a content-based speech restriction. As such, the court said, the state has to have a compelling interest for imposing the law, and the state must narrowly tailor it to this interest.

The court found California’s compelling interest for the law — namely, to put an end to discrimination — to be a legitimate one. But the judges said the law was not sufficiently narrowly tailored to that interest.

Instead, the court found it to be “overinclusive,” criminalizing more speech than was necessary.

The ruling

“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 court’s opinion reads, according to Volokh.

It adds: “Using the workplace context as an analogy, the statute prohibits the kind of isolated remarks not sufficiently severe or pervasive to create an objectively hostile work environment. There is no requirement in the statute that the misgendering at issue here negatively affect any resident’s access to care or course of treatment. Indeed, there is no requirement that the resident even be aware of the misgendering.”

According to Volokh, the judges said the burden is now “on the government to prove proposed alternatives will not be as effective as the challenged statute.”

In the meantime, the long and short of it is that this law is now a goner.

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