California Supreme Court To Nursing Home Employees: Refer to Patients By Preferred Names and Pronouns Or Be Charged With A Crime

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It’s hard enough for the elderly in nursing homes – particularly members of the LGBTQ+ community, who have often historically faced particularly heartbreaking challenges in older age. One would think it would not be a crisis to honor a simple request by a facility resident to be addressed by a pronoun of preference. Apparently, it was. And it came to a head in a courtroom. 

The good news: California’s highest court ruled unanimously on Thursday that nursing home employees who deliberately and repeatedly refer to LGBTQ+ patients with a name or pronoun different from the one they prefer can be charged with a crime under state law. Furthermore, the court ruled that having such a law is not a violation of the First Amendment.

The decision overturns a lower-court ruling that had declared the law unconstitutional. It played itself out in a Sacramento County case, Taking Offense v. State of California. Taking Offense is a group with the stated purpose of pushing back against “the rising cancel culture” and opposing efforts to “coerce society to accept transgender fiction.”

The case challenged a portion of the state health and safety code, called the “pronouns provision,” which prohibits staff at long-term care facilities (ranging from skilled nursing to residential personal care for the elderly) from repeatedly failing to use a resident’s preferred name or pronouns. It argued that the provision violated employees’ rights to free speech and free exercise of religion, and that it unconstitutionally compelled and censored speech content. The California Supreme Court rejected that challenge with a nod to Senate Bill 219 (SB 219), which codifies anti-discrimination protections.

“It is carefully calibrated and does not restrict long-term care facilities’ staff from expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering a resident — and even then, the prohibition is limited to willful, repeated, knowing acts done because of a legally protected characteristic,” Chief Justice Patricia Guerrero said in the ruling for the majority.

“All individuals deserve to live free from harmful, disrespectful rhetoric that attacks their sense of self, especially when receiving care necessary for their continued well-being,” said Attorney General Bonta. “State law prohibits discrimination and harassment in the workplace. I am glad that the California Supreme Court agrees with us on the importance of these protections and has affirmed their constitutionality. We will continue to fight to ensure LGBTQ seniors, other long-term care facility residents, and all Californians remain protected from attacks against their right to respectful and dignified treatment.”