California Supreme Court upholds LGBT rights law in nursing homes

from Nickel DuraCalMatters

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The Supreme Court of California rejected a First Amendment challenge to a state law that protects the rights of gay and transgender people in nursing homes and prohibits staff at those sites from using the wrong pronouns to address a resident or colleague.

The ruling handed down today ruled that violations of Bill of Rights for LGBT Long-Term Care Residents are not protected by the First Amendment because they relate to codes of conduct in what is effectively both a workplace and people’s homes.

“The pronoun provision constitutes a regulation of discriminatory conduct that incidentally affects speech,” the court ruled.

The opinion overturns an appeals court ruling that said the law’s provisions related to patient pronouns and names could impede an employee’s free speech. Five justices concurred in the main opinion; two signed consent. There were no dissenters.

The group challenging the 2017 law, Taking Offense, argued in its lawsuit that the law, which requires long-term care facilities to use pronouns of people’s choosing, is “criminalizing and overwhelming speech.”

Taking Offense describes itself in court filings as a group opposing efforts “to force society to accept the transgender fiction that a person can be whatever sex/gender they think they are or choose to be.”

The court ruled that the LGBT Long-Term Care Residents Bill of Rights “will be violated when intentional and repeated sexual misconduct occurs in the presence of a resident, the resident hears or sees the sexual misconduct, and the resident is harmed because the resident perceives the conduct to be abusive.”

The LGBT Long-Term Care Residents Bill of Rights is enforced by a section of the California Health and Safety Code. Penalties can range from civil fines to criminal prosecution — the potential for criminal sanctions was a major element of Taking Offense’s argument. The court’s ruling noted that other protections for long-term care facility residents have long included both civil and criminal penalties.

“It seems clear that the Legislature did not intend to impose such criminal penalties except as a last resort in the most dire circumstances,” wrote the decision’s author, California Supreme Court Chief Justice Patricia Guerrero.

The opinion draws comparisons to other free speech rulings with similar elements, such as a 1995 U.S. Supreme Court ruling that said the Irish-American Gay, Lesbian and Bisexual Group of Boston could not force St. Patrick’s Day parade organizers to include them.

“In contrast, the present case does not involve any analogous creative product or expressive association,” Guerrero wrote, concluding that California law instead regulates the conduct of individuals.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.