A so-called “pronoun provision” in California’s bill of rights for LGBT senior living and other long-term care residents is in the hands of the state supreme court after an appellate court found that it violated facility employees’ free speech rights.
A case pending before the California Supreme Court is challenging a provision of the state’s LGBT bill of rights that protects residents from a community’s or facility’s refusal to use their preferred name and pronouns.
The so-called pronoun provision makes it unlawful for workers to “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”
The provision was part of the LGBT Bill of Rights adopted by the state legislature in 2017. The law requires long-term care workers to refer to residents by their preferred names or pronouns, and it prohibits providers from denying admission, from involuntarily discharging, from evicting or from transferring a resident within a community or facility or to another one based on anti-LGBT attitudes of other residents or a person’s actual or perceived sexual orientation, gender, gender identity, gender expression or HIV status.
The organization Taking Offense challenged the pronoun provision and lost, but the ruling was reversed on appeal in 2021. The appeals court ruled that although the state had a compelling interest in eliminating discrimination against LGBT residents, the state did not show that “criminalizing occasional, off-hand or isolated instances of misgendering by the staff at the residential facilities where they live … is necessary to advance that goal.”
The California Supreme Court accepted the case for review and is expected to issue an opinion later this year.
LeadingAge California told McKnight’s Senior Living that it fundamentally believes that older adults should be able to age in places where they feel safe and supported.
“The LGBTQ Bill of Rights is an important tool that helps ensure this can happen by protecting LGBTQ older adults and reducing instances of discrimination,” said Marina Servantez, LeadingAge California director of diversity, equity and inclusion and social impact initiatives. “For years, we have been working with our nonprofit providers to offer education, training and resources to create inclusive living environments that uplift historically marginalized communities across the aging continuum.”
In a column in the San Francisco Bay Times, Eric Carlson, director of long-term services and supports advocacy at Justice in Aging, said that the provision is unenforceable based on the state appellate court ruling. According to the appellate court, the state adopted an “unduly restrictive method” to regulate the content of speech.
Justice In Aging submitted a friend-of-the-court briefing defending the provision on behalf of itself and other California community organizations, including LGBT elder advocacy group SAGE and the California Commission on Aging.
“The ‘pronoun provision’ of California law is a reasonable and necessary step to ensure that transgender residents are treated with respect and dignity,’” the brief argues. “This is simple respect, and the type of respect that reasonably can be expected from California’s long-term care facilities and their employees.
