On Friday, a California appeals court struck down part of Senate Bill 219 (enacted in 2017), which required staffers in elder care facilities to use the preferred pronouns of transgender residents or patients. The court ruled that the transgender mandate, codified in Health and Safety Code section 1439.51, violates the free speech rights of elder care staff. The court rejected a challenge to another aspect of the law, however.
“Content-based laws are presumptively unconstitutional and are subject to strict scrutiny,” Judge Elena Duarte wrote for herself and two other judges in Taking Offense v. California (2021). “The pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment.”
Duarte ruled that while California has a compelling state interest in preventing discrimination at elder care facilities, the transgender pronoun mandate did not use the least restrictive means to achieve that end.
Duarte cited the Supreme Court’s pivotal ruling in NIFLA v. Becerra (2018), in which the state of California attempted to force crisis pregnancy centers (many of which are pro-life) to advertise abortion. Then-Attorney General Xavier Becerra (D-Calif.) argued that this compelled pro-abortion speech did not really violate the First Amendment because it involved applying professional standards in a health care setting.
While the current attorney general, Rob Bonta, does not appear to have resurrected the “professional speech” arguments of his predecessor, he did argue that forcing elder care staff to use a transgender person’s preferred pronouns did not constitute government compelled speech. The court rejected this argument.
“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,” Judge Duarte wrote. “Generally, the free speech clause protects a wide variety of speech a listener may find offensive, including insulting speech based on race, national origin, or religious beliefs.”
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