California Supreme Court affirms protections for LGBTQ+ long-term care residents

The California Supreme Court has upheld the constitutionality of a state law safeguarding the rights of LGBTQ+ individuals residing in long-term care facilities. The court rejected a First Amendment challenge to the LGBT Long-Term Care Residents’ Bill of Rights, affirming its protections for vulnerable members of the LGBTQ+ community.

As reported by CalMatters, the ruling asserts that the law's provisions, which include requiring facility staff to use residents' preferred pronouns and names, regulate conduct within a care setting that functions as both a workplace and a home. The court determined that these regulations serve to prevent discriminatory behavior and only incidentally affect speech.

"The pronouns provision constitutes a regulation of discriminatory conduct that incidentally affects speech," the court stated in its ruling.

The decision reverses a prior appeals court ruling that had raised concerns about potential infringements on employees' freedom of speech related to the law's pronoun and name provisions. Five justices concurred with the main opinion, with two signing onto a separate concurrence. No dissenting opinions were issued.

California Attorney General Rob Bonta lauded the court's decision, stating, "All individuals deserve to live free from harmful, disrespectful rhetoric that attacks their sense of self, especially when receiving care necessary for their continued well-being. State law prohibits discrimination and harassment in the workplace. I am glad that the California Supreme Court agrees with us on the importance of these protections and has affirmed their constitutionality."

The legal challenge was brought by Taking Offense, a group that argued the law's mandate to use individuals' chosen pronouns amounted to "criminalizing and compelling speech content." The group's court filings expressed opposition to what they termed efforts "to coerce society to accept transgender fiction that a person can be whatever sex/gender s/he thinks s/he is, or chooses to be."

The court clarified that violations of the LGBT Long-Term Care Residents’ Bill of Rights occur "when willful and repeated misgendering has occurred in the presence of a resident, the resident hears or sees the misgendering, and the resident is harmed because the resident perceives that conduct to be abusive."

The law is enforced through California's Health and Safety Code, with potential penalties ranging from civil fines to criminal misdemeanor prosecutions. The possibility of criminal penalties was a central point of contention in Taking Offense's argument. However, the court emphasized that similar protections for long-term care residents have historically been subject to both civil and criminal penalties.

California Supreme Court Chief Justice Patricia Guerrero, who authored the decision, wrote, "It seems apparent that the Legislature does not intend for such criminal penalties to be imposed except as a last resort, in the most egregious circumstances."

The court drew parallels to other free speech cases, including a 1995 U.S. Supreme Court decision regarding the inclusion of the Irish-American Gay, Lesbian and Bisexual Group of Boston in a St. Patrick's Day parade.

"By contrast, the present case does not involve any analogous creative product or expressive association," Guerrero wrote, concluding that the California law is instead focused on regulating discriminatory conduct within long-term care facilities.