California Appeals Court Shoots Down Mandatory Pronoun Use

When California passed the law, most people said it would be shot down. California lawmakers don’t take much time to consider the Constitutional ramifications of their law, hoping that liberals on the courts will back them

California Appeals Court: Mandatory Transgender Pronouns Violate First Amendment

The California Third District Court of Appeals ruled unanimously Friday that a 2017 state law requiring nursing homes to use patients’ preferred pronouns violates First Amendment free speech rights.

The law, SB 219, was authored by Senator Scott Wiener (D-San Francisco). As Breitbart News reported at the time, it provided for jail sentences of up to one year for using the “wrong” pronoun:

A new bill being considered by the California State Senate would punish people who “willfully and repeatedly” refuse “to use a transgender resident’s preferred name or pronouns” in a public health, retirement or housing institution.

The bill, SB 219, was proposed by State Sen. Scott Wiener (D-San Francisco). It includes several other provisions that require a health facility, for example, to honor the gender identity of a patient, meaning that the patient must be admitted to a room that comports with his or her chosen gender; allowed to use whatever bathroom he or she wants to use; and wear whatever clothing or cosmetics he or she decides to wear. It has gone through several amendments.

And the people can be fined heavily, up to $1,000, for failure to use the right pronouns. Besides being a violation of the 1st Amendment, which you are familiar with, and California’s Article I Section 2

(a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

Seems pretty clear, does it not?

The court held:

As we will explain, we agree that the pronoun provision is a content-based restriction on speech. 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. … As we discuss at greater length post, 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.

However, “the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” (Wooley, supra, 430 U.S. at p. 714.) 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. … Accordingly, we disagree with the Attorney General that the restriction on speech here is content neutral simply because employees may refrain from using pronouns altogether to avoid misgendering.

The court also notes

A. First Amendment Principles
The First Amendment to the United States Constitution states: “Congress shall make no law . . . abridging the freedom of speech . . . .” This fundamental right to free speech applies to the states through the Fourteenth Amendment’s due process clause. (Gitlow v. New York (1925) 268 U.S. 652, 666.) Similarly, article I, section 2, subdivision (a) of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article I’s free speech clause enjoys existence and force independent of the First Amendment to the federal Constitution. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 489.)

The court went very, very deep into this decision, primarily along the 1st Amendment lines, even citing that speech can be limited when it involves criminal cases, such as bribery, perjury, terroristic threats, and slander. Also, “intentional infliction of emotional distress.” It really, really digs deep. It’s like the Court was interested in using as many words as possible, when the California Constitution is quite clear. Criminal punishment for calling someone “he” when they want to use “she” is protected speech. At the end, though, they did shoot down the law

Supporters of the law say they plan to appeal, according to the Washington Blade: “The Court’s decision is disconnected from the reality facing transgender people. Deliberately misgendering a transgender person isn’t just a matter of opinion …  This misguided decision cannot be allowed to stand,” Weiner said.

Pass a law that says you can only call people pronouns of their actual biological sex, with criminal penalties, and watch these same people go apoplectic about their free speech being stifled.

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2 Responses to “California Appeals Court Shoots Down Mandatory Pronoun Use”

  1. Dana says:

    Our esteemed host concluded:

    Pass a law that says you can only call people pronouns of their actual biological sex, with criminal penalties, and watch these same people go apoplectic about their free speech being stifled.

    But, but, but, that’s different!

    I’m old enough to remember the Berkeley Free Speech Movement, and how the left championed absolute freedom of speech. I’m old enough to remember New York Times Company v United States, and how the Times, and The Washington Post, in a companion case, championed absolute freedom of the press against the Nixon Administration’s attempt to prevent publication of the Pentagon Papers.

    Now? The left want to restrict speech and control speech.

  2. Professor Hale says:

    This is an interesting case. The claim that it is free speech is correct but only if you follow the bread crumbs from controlling language to control speech. Choice of pronoun itself does not control speech. That is just called grammar. There are already laws on the books in other states and presumably in California too, to impose penalties on hate speech and attempts to lump gender pronoun misuse as part of that. As long as all hate speech laws still stand, the court did not finish it’s job.

    The thread that the court needs to pull is that the pronoun law is government enforced political activism on the behalf of a very small but vocal activist group. It is the LGBTQ equivalent of passing a law making it illegal to say “All lives matter” or penalizing the slogan “Make America Great Again”. Only a small step from there to government action to declare confederate images and flags expressions of hate that need to be penalized.

    I wonder if anyone has thought through these hate crime and mandatory pronoun laws to the logical conclusion of naming a child an offensive term (use your imagination) and then FORCING, under penalty of law, everyone to use it.

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