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.
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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.”
Just as NIFLA involved a case of government compelling pro-life pregnancy centers to endorse abortion, so this law requires elder care staff who may disagree with transgender identity to nonetheless endorse a transgender patient’s gender identity. “If an employee’s speech repeatedly and willfully misgenders a long-term care facility resident, the speech is criminalized,” Duarte explained.
While Bonta argued that staff who disagree with transgender identity may simply remain silent, the judge ruled that “for purposes of the First Amendment, there is no difference between a law compelling an employee to utter a resident’s preferred pronoun and prohibiting an employee from uttering a pronoun the resident does not prefer.”
“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,” Judge Duarte ruled.
The judge ruled that the pronoun provision in the law “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.”
While the judges reached the right conclusion on free speech grounds, they expressed far too much deference for transgender orthodoxy in the ruling. Duarte described disagreement with transgender orthodoxy as “disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth.” Such a definition overlooks the fact that biological sex is not a matter of “assignment” at birth but a matter of chromosomes dating back to the moment of conception, a DNA blueprint that determines biology throughout life. Those who oppose transgender orthodoxy do not disagree with claims about gender identity — they merely disagree with the absurd suggestion that gender identity erases or somehow supersedes biological sex.
Even so, the judges rightly noted that transgenderism and transgender pronouns are a controversial topic on which the government has no business compelling a form of orthodoxy.
As the Supreme Court wrote in West Virginia v. Barnette (1943), “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
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The Supreme Court’s precedents on free speech have also led the Sixth Circuit Court of Appeals to strike down a transgender pronoun mandate at the Shawnee State University in Ohio. Yet the Orwellian “Equality Act” would essentially force LGBT orthodoxy in many parts of society, explicitly undermining the Religious Freedom Restoration Act of 1993.
Taking Offense v. California represents an important victory for free speech, but LGBT activists and their allies in the Democratic Party are intent on forcing their agenda any way they can, through the Biden administration, Congress, or the courts.
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