The ideological – and now legislative – movement to force people to use “preferred pronouns” based on a “gender identity” rather than on biological sex hit a speed bump in California, where a state appeals court struck down a law criminalizing the “misgendering” of patients in elder care facilities.
In 2017, the California legislature passed SB 219, the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. This “misgendering” law criminalized the speech of employees of such facilities who on more than one occasion use a pronoun not in keeping with a patient’s “preferred pronouns.”
The law was challenged by a group of state taxpayers collectively calling themselves Taking Offense. Their lawsuit claimed the law violated the First and Fourteenth Amendments to the U.S. Constitution, as well as their California counterparts. After their suit was thrown out by a trial court judge, the group appealed to the California Court of Appeal.
The three-judge panel, in a decision written by Justice Elena Duarte, first agreed with Taking Offense’s argument that the California law imposed a “content-based restriction” on speech, which triggers a court’s highest level of scrutiny, called “strict scrutiny.” It’s one thing to put reasonable limits on the time, place or manner of speech, but once the government starts regulating the content of speech, only the most compelling government interests will survive, and even then, only if the law is narrowly tailored to achieve those interests.
The California law didn’t pass that test, the appeals court ruled.
“As we discuss at greater length post,” the opinion reads, “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.”
Does this decision equal a victory in the ideological battle over the definitions of words? Will this decision protect those who believe that there are only two sexes, and that being forced to abide by the artificial, anti-biological speech rules of “gender identity” activists is inherently wrong?
This decision, which could still be appealed to the California Supreme Court by either side, merely faults the state legislature for going too far in criminalizing someone who violates the law. The legislature has other, less severe, options for punishing people who “misgender” someone, the justices wrote. One of the appeals court’s members, Justice Ronald B. Robie, gave a thumbs up to the intent of this law in his concurring opinion and encouraged the legislature to modify it so that it would survive a First Amendment challenge in the future.
“One’s name or the pronoun that represents that name is the most personal expression of one’s self,” Justice Robie wrote. “To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel. The impact of using inappropriate pronouns is even more offensive and hurtful when it occurs in an environment where one cannot choose the persons with whom one associates. The Legislature recognized this fact (as recounted in the opinion) but unfortunately chose a prophylactic remedy to eliminate misuse of pronouns that just went too far. Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation.”
While it’s laudable to be compassionate and kind to those suffering from gender dysphoria, there is a bright line being drawn by various government entities that wrongfully forces those of us who believe the words of Scripture that God “made them male and female” (Matthew 19:3-5 ESV), to speak untruths that contradict His eternal truth as well as basic biology.
That is a concerning trend, and this court, even while striking down this particular law, only encouraged the California state government to continue down that same troubling path.
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