California nursing home staffers will no longer be faced with potential jail time or thousands of dollars in fines if they intentionally misgender or fail to use a resident’s preferred name or pronouns, thanks to a new ruling by an appeals court.
The 3-0 decision was handed down by California’s 3rd District Court of Appeal and overturns a 2017 provision — known as the “pronoun provision” — that made it a crime for facilities and staff that “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred names or pronouns.”
Providers found guilty of violating the provision faced a misdemeanor charge with a maximum punishment of $2,500 or 180 days in prison.
Associate Justice Elena Duarte in the ruling said the provision was in violation of employees’ right to free speech.
“We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person’s expressed gender identity. But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view,” she wrote.
The provision was challenged by the petitioner “Taking Offense,” which is an unincorporated association that includes at least one California citizen and taxpayer. The association’s attorney, David Llewellyn, argued in a statement to local media that “free speech should not be subject to criminal penalties, regardless of its content.”
The state’s attorney general, who was unhappy with the ruling, said it’s reviewing the court’s decision in hopes to appeal.
