The pronoun provision of the Lesbian, Gay, Bisexual, and Transgender Long Term Care Facility Residents’ Bill of Rights violates the First Amendment, a California appeals court has ruled. The provision could not pass strict scrutiny, the court said, because it was not narrowly drawn.
In 2017, the California legislature added the LGBT Bill of Rights to the state Health and Safety Code. The law included what is known as the pronoun provision. It provides that is unlawful for long-term facility workers to “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”
Taking Offense, an unincorporated association, challenged the pronoun provision on First Amendment grounds. After a trial court ruled against Taking Offense, the group appealed.
On July 16, 2021, the Court of Appeals of California, Third Appellate District reversed in Taking Offense v. State of California.
The appeals court first determined that the law was content-based. In First Amendment jurisprudence, laws are often classified as content-based or content-neutral. A content-based law is one in which the government draws distinctions or treats speakers differently on the basis of the content of their speech. A content-neutral law applies across the board and treats all speech and speakers equally. The distinction is important, because content-based laws are reviewed under a higher form of judicial review known as strict scrutiny.
The appeals court said the pronoun provision is content-based because “the government is compelling employees to give voice to the resident’s preferred pronoun where that pronoun expressly contradicts the message the employee would prefer to voice.”
The appeals court said that although the state has a compelling interest in eliminating discrimination against LGBT residents at long-term health care facilities, the content-based law was not narrowly tailored and burdened too much speech.
“We recognize the Legislature’s legitimate and laudable goal of rooting out discrimination against LGBT residents of long-term care facilities,” the appeals court wrote. “But the Attorney General has not shown that criminalizing occasional, off-hand, or isolated instances of misgendering … is necessary to advance that goal.”
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).