California’s Top Court Will Review Transgender Elder Care Law

California’s Supreme Court will consider whether a law that prohibits long-term elder care workers from misgendering transgender residents is an illegal restriction on free speech, the justices announced Wednesday.

In July, an appellate court in Sacramento revived a petition to block a provision of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights that prohibits care workers from referring to residents by names or pronouns other than those chosen by the resident.

That particular provision is a content-based restriction on free speech, and isn’t sufficiently narrowly tailored to justify the burden on long-term care providers, Justice Elena J. Duarte wrote for the California Court of Appeal, Third District. It restricts more speech than is necessary to achieve the state’s interest in eliminating discrimination and mistreatment of LGBT seniors, Duarte said.

The law criminalizes even occasional, isolated instances of willful misgendering, without requiring that those instances amount to harassment or discriminatory conduct, Duarte wrote.

The appellate court rejected California’s argument that the rule is content-neutral because employees can choose to refrain from using any pronouns at all to avoid misgendering.

But a separate provision requiring gender-based room assignments to be made in accordance with a resident’s gender identity doesn’t violate the equal protection clause of the Fourteenth Amendment or the California Constitution, the court said. Transgender residents are similarly situated to non-transgender residents for room assignment purposes, and the provision doesn’t provide special rights to transgender residents.

California Supreme Court Justices Tani G. Cantil-Sakauye, Carol A. Corrigan, Goodwin H. Liu, Leondra R. Kruger, Joshua P. Groban, and Martin J. Jenkins voted Wednesday to review the case, but declined to depublish the lower court’s opinion.

Pending review, the Third District’s ruling may be cited “not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority” allowing trial courts to choose between sides of the conflict, the justices said.

Llewellyn Law Office represents Taking Offense. The California Attorney General represents the state.

The case is Taking Offense v. California, Cal., No. S270535, 11/10/21.