Staff at nursing homes in California are no longer prohibited from deliberately misgendering residents, a California district court ruled this month, saying the ban that was enshrined as part of a 2017 law was a violation of staffers’ freedom of speech.
Equality California, a nonprofit that aims to protect LGBTQ Californians, and one of the sponsors of the legislation, said in a statement that the court’s decision was “beyond disappointing, especially for (California’s) transgender and nonbinary seniors.”
The Third District Court of Appeals overturned a part of the LGBTQ Long-term Care Facility Residents’ Bill of Rights, passed in 2017, known as the “pronoun provision.” That provision, referenced in this July’s decision, initially banned nursing home staff from “willfully and repeatedly” misgendering or using the incorrect name to refer to a resident “when clearly informed of the name and pronoun.”
“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,” Associate Justice Elena J. Duarte wrote in the new decision, which was unanimous among three justices. “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view.”
Misgendering people and using incorrect pronouns or names on purpose “does indeed convey an ideological message,” the judge wrote.
In a statement following the decision, the organization’s executive director, Rick Chavez Zbur, said that misgendering someone and using the incorrect name “isn’t an issue of free speech — it’s a hateful act that denies someone their dignity and truth.”
State Sen. Scott Wiener, who introduced the 2017 bill, called the court’s decision “disconnected from the reality facing transgender people.”
“Deliberately misgendering a transgender person isn’t just a matter of opinion, and it’s not simply ‘disrespectful, discourteous, or insulting.’ Rather, it’s straight up harassment,” he said in a statement. “And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home. This misguided decision cannot be allowed to stand.”
One 2014 study of around 130 transgender adults found that 32.8% of participants said they felt “very stigmatized” when they were misgendered, and a 2020 review of 20 studies published since 2009 found that the more frequently a trans person was misgendered, the more likely they were to experience distress.
A study published in 2014 found that the aging population of transgender elders in the US were at “significantly higher risk of poor physical health, disability, depressive symptomatology, and perceived stress” than cisgender seniors, or those whose gender identity aligns with the sex they were assigned at birth. And even when they have access to health care services, they often face discrimination and harassment in those settings, according to the 2014 study.
While the court’s decision to overturn the pronoun provision upset LGBTQ rights groups, it did uphold another component of the law related to room assignments in long-term care facilities.
SAGE, or Services and Advocacy for LGBT Elders, which connects LGBTQ elders with health care services, praised the court for upholding the part of the 2017 law that requires nursing home staff to assign rooms to transgender residents in accordance with the resident’s preference, when gender is the basis of the assignment system. Attorney David Llewellyn, who represented an unnamed plaintiff, initially challenged both the pronoun provision and the room assignment provision, the latter of which the court declined to overturn.
Affirming transgender seniors’ identity and assigning rooms based on their gender “is a key component to the culturally competent care that transgender and gender nonconforming elders deserve,” SAGE CEO Michael Adams said in a comment to CNN.
Llewellyn declined an interview request from CNN but said in an email that “free speech must be protected against criminal penalties, regardless of its content.”