California Appeals Court: Mandatory Transgender Pronouns Violate First Amendment

The California Third District Court of Appeals ruled unanimously Friday that a 2017 state law requiring nursing homes to use patients’ preferred pronouns violates First Amendment free speech rights.

The law, SB 219, was authored by Senator Scott Wiener (D-San Francisco). As Breitbart News reported at the time, it provided for jail sentences of up to one year for using the “wrong” pronoun:

A new bill being considered by the California State Senate would punish people who “willfully and repeatedly” refuse “to use a transgender resident’s preferred name or pronouns” in a public health, retirement or housing institution.

The bill, SB 219, was proposed by State Sen. Scott Wiener (D-San Francisco). It includes several other provisions that require a health facility, for example, to honor the gender identity of a patient, meaning that the patient must be admitted to a room that comports with his or her chosen gender; allowed to use whatever bathroom he or she wants to use; and wear whatever clothing or cosmetics he or she decides to wear. It has gone through several amendments.

CBN News notes: “Fines for repeat offenders could be as high as $1,000 and a jail term of up to a year.”

The court held:

As we will explain, we agree that the pronoun provision is a content-based restriction on speech. The law compels long-term care facility staff to alter the message they would prefer to convey, either by hosting a message as required by the resident or by refraining from using pronouns at all. … As we discuss at greater length post, we recognize the State has a compelling interest in eliminating discrimination against residents of long-term care facilities. However, we conclude the pronoun provision is not narrowly tailored to achieve a compelling government objective because it burdens speech more than is required to achieve the State’s compelling objective. Accordingly, the provision does not survive strict scrutiny.

However, “the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” (Wooley, supra, 430 U.S. at p. 714.) For purposes of the First Amendment, there is no difference between a law compelling an employee to utter a resident’s preferred pronoun and prohibiting an employee from uttering a pronoun the resident does not prefer. … Accordingly, we disagree with the Attorney General that the restriction on speech here is content neutral simply because employees may refrain from using pronouns altogether to avoid misgendering.

Supporters of the law say they plan to appeal, according to the Washington Blade: “The Court’s decision is disconnected from the reality facing transgender people. Deliberately misgendering a transgender person isn’t just a matter of opinion …  This misguided decision cannot be allowed to stand,” Weiner said.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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