A state appellate court struck down a key provision of the LGBTQ Senior Bill of Rights, which requires long-term care staff to refer to facility residents by their preferred names and pronouns, as unconstitutional under the First Amendment.
In the case of Taking Offense v. California, a three-judge panel of the 3rd District California Court of Appeal in Sacramento came to a unanimous decision that the provision violated the rights to freedom of speech and the free exercise of religion.
The petitioner, Taking Offense, is described only as “an unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the last year.” Taking Offense asserted what is known as a facial challenge to the LGBTQ Senior Bill of Rights, which was authored by gay state Senator Scott Wiener (D-San Francisco) in 2017.
A facial challenge does not require the law to have been applied or enforced against a petitioner; rather it is sought to prevent a law that is prima facie unconstitutional from being enforced.
“We agree with Taking Offense that … the pronoun provision, is a content-based restriction of speech that does not survive strict scrutiny,” Justice Elena J. Duarte stated in the ruling. “A person’s right to speak freely prohibits the government from compelling adoption of a government message and protects the right of citizens to refrain from speaking.”
Wiener blasted the court’s decision in a July 19 statement. “The court’s decision is disconnected from the reality facing transgender people,” Wiener stated. “Deliberately misgendering a transgender person isn’t just a matter of opinion, and it’s not simply ‘disrespectful, discourteous, or insulting.’ Rather, it’s straight-up harassment. And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home. This misguided decision cannot be allowed to stand.”
The law is intended to protect LGBTQ seniors from being discriminated against in long-term care facilities throughout the state. Modeled after a similar policy that San Francisco officials adopted several years earlier, it requires employees at such facilities to allow same-sex couples to live together and, until the appellate court decision, to use the preferred names and pronouns of transgender residents.
The court did uphold a part of the law that held it is not unlawful for transgender residents to be assigned rooms in accordance with their gender identity, unless they request otherwise, when room assignments are based on gender.
Taking Offense argued this was unconstitutional under the 14th Amendment’s equal protection clause. The court disagreed.
“Taking Offense fails to show that the right afforded to transgender residents by the room assignment provision — the right to a room assignment in accordance with the resident’s gender identity — is any different from the right afforded to non-transgender residents,” Duarte stated. “Accordingly, we conclude Taking Offense has failed to establish that the room assignment provision violates equal protection.”
In a concurring opinion, Justice Ronald B. Robie stated that the goal of the LGBTQ Senior Bill of Rights was laudable but that it “went too far.” He suggested the Legislature try again.
The above comes from a July 20 story by Bay Area Reporter.