California Supreme Court upholds misgendering law

(CN) — California’s highest court on Thursday reversed a lower court’s decision about misgendering residents at long-term care facilities, ruling that a law regulating such speech isn’t forbidden by the First Amendment.

Additionally, the California Supreme Court decided that enforcing the law through criminal penalties doesn’t make its pronouns provision unconstitutional.

The decision stems from a Sacramento County case, Taking Offense v. state of California , that challenged an aspect of the state’s health and safety code. That code, called the “pronouns provision,” prohibits staff at long-term care facilities from persistently failing to use a resident’s preferred name or pronouns.

The Sacramento County court denied Taking Offense’s petition, though an appeals court partially reversed that decision. It concluded that the challenged portion of the law violated the First Amendment, as the law wasn’t properly crafted to address California’s interest in eliminating discrimination.

On Thursday, the high court reversed the lower court’s ruling and remanded the case for further action.

“It is carefully calibrated and does not restrict long-term care facilities’ staff from expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering a resident — and even then, the prohibition is limited to willful, repeated, knowing acts done because of a legally protected characteristic,” Chief Justice Patricia Guerrero said in the ruling for the majority. “In light of this unique setting and scope, we conclude that the provision should be analyzed, and upheld, as a regulation of discriminatory conduct that incidentally affects speech. It should not be subject to First Amendment scrutiny as an abridgment of the freedom of speech.”

The case hinged on the Legislature’s addition to the health and safety code, which included, among other items, the prohibition on long-term care staff of willfully and repeatedly not using a resident’s preferred name or pronoun.

Taking Offense, a group stating that its purpose is to push back against “the rising ‘cancel culture’ and all efforts of the Legislature, the courts or the private sector to silence public debate in opposition to the official, progressive nonbinary gender paradigm and transgenderism,” filed suit. It called the code section unconstitutional, as it violated due process of law and freedom of speech.

Setting aside a question of whether Taking Offense has standing to sue, the Gavin Newsom appointee said the court could still address the merits of the case.

“… In light of the highly unusual posture and circumstances of the present case, were we to conclude that we lack jurisdiction to address the Court of Appeal’s analysis and judgment invalidating the challenged provision for assertedly restricting more speech than necessary to achieve the state’s compelling interest, a cloud over the constitutionality of the statute — a significant matter of public interest — would continue to loom,” Guerrero said.

The chief justice said the high court saw the law not as a regulation of content in someone’s speech but as regulating discriminatory conduct. The latter triggers no special constitutional scrutiny.

The statute focuses on a narrow setting, she added, regulating conduct toward seniors who typically are a captive audience in the health facilities. Staff can still state their views about gender, including residents, but can’t misgender a resident knowingly and repeatedly.

The prohibition of that willful and repetitious speech is similar to an existing prohibition on a hostile work environment. The high court doesn’t need to dig into questions of harassment and discrimination under the First Amendment because the health and safety code regulates conduct, just as a hostile work environment is constitutionally proscribed, Guerrero said.

“Indeed, the proscription at issue arises not merely in the workplace, but simultaneously in a special residential setting in which those whom the statute seeks to protect are both particularly unlikely to be able to avoid the unwanted conduct and particularly in danger of being harmed by it,” she added.

Pivoting to the potential of criminal penalties for violating the code section, Guerrero said it appeared the Legislature intended such sanctions only as a last resort. Taking Offense didn’t show that the small chance of enforcement through criminal penalties made the law unconstitutional.

“The statute at issue in Taking Offense v. California criminalizes speech on the basis of its content, that is, failing to use a person’s ‘preferred pronouns’ (‘misgendering),” said attorney David L. Llewellyn Jr., representing Taking Offense, in a statement to Courthouse News. “The First Amendment requires courts to use the highest standard of review, ‘strict scrutiny,’ to examine laws that infringe upon speech content, by which standard the California statute is clearly unconstitutional. To avoid this conclusion, the California Supreme Court mischaracterized the statute as ‘a regulation of discriminatory conduct that incidentally affects speech.’ The only conduct involved is speech. Embarrassing. So much for the rule of law.”

Representatives of Attorney General Rob Bonta’s office couldn’t be reached for comment.