CA Appeals Court Overturns Anti-Misgendering Law on First Amendment Grounds


OPINION: This article contains commentary which reflects the author's opinion








A California appeals court has struck down an unconstitutional state law that penalized elder-care workers for using pronouns inconsistent with an elderly long-term care patients’ claimed gender identity.

The California appeals court ruling provides a precedent that may wind up applying to other cases across the country involving absurd “woke” laws aiming to punish people for using someone’s “wrong pronoun” to describe their gender.

In Taking Offense v. California, the court considered the constitutionality of Cal. Health & Safety Code § 1439.51(a)(5) which provides:

It shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s … gender identity[ or] gender expression …: Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” …

The appeals court held that the pronoun aspect of the law was a content-based speech restriction:

Applying Reed v. Town of Gilbert (2015), the pronoun provision is content based on its face because it draws a distinction between what is and what is not permissible based on the content of what is said. If an employee’s speech repeatedly and willfully misgenders [i.e., systematically misuses the preferred pronouns of] a long-term care facility resident, the speech is criminalized. If an employee’s speech does not misgender a resident, or if the employee misgenders the resident only once or unintentionally, the speech is not criminalized.

[…]

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. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth….

Therefore, the court held that the law was unconstitutional unless it was narrowly tailored to a compelling interest:

[But] it is not enough for the government to identify a compelling interest. The government must also show the statute furthers the compelling interest and is “narrowly tailored to that end.” To satisfy the narrow tailoring requirement in the case of a content-based speech restriction, the government must show the law is the least restrictive alternative of achieving the government interest. Included within the “least restrictive alternative” inquiry are the related components that the law must advance the government interest, must not be overinclusive, meaning the law may not restrict speech that does not implicate the government interest, and may not be underinclusive, meaning it fails to restrict a significant amount of speech harming the government interest to the same degree as the restrict[ed] speech.

The burden is on the government to prove proposed alternatives will not be as effective as the challenged statute. “In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving [the Legislature’s] goal, regardless of the restriction it imposes.

Here’s the key paragraph:

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We conclude the pronoun provision—whether enforced through criminal or civil penalties—is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex. Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering—provided there has been at least one prior instance—without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct. Using the workplace context as an analogy, the statute prohibits the kind of isolated remarks not sufficiently severe or pervasive to create an objectively hostile work environment. There is no requirement in the statute that the misgendering at issue here negatively affect any resident’s access to care or course of treatment. Indeed, there is no requirement that the resident even be aware of the misgendering.

This is nothing short of a major defeat for “woke” liberals.

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