Update on pronoun law

[Amulek]

A little while back there was a thread (see, here) which included discussion of SB-219, a California law which prohibits staff members of long-term care facilities from referring to a resident by anything except the person's preferred name or pronoun. Violation of this law would incur a fine of up to $1000 or a year in jail.

Well, a California appellate court has ruled that the pronoun provision violates free speech rights. In Taking Offense v. State Of California, the court held as follows:

Quote

[W]e conclude the pronoun provision ... is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.... [T]he law criminalizes even occasional, isolated, off-hand instances of willful misgendering-- provided there has been at least one prior instance--without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.

Sounds about right. The pronoun provision was literally a content-based restriction on speech, and I didn't expect it to survive strict scrutiny analysis (though it is California, so I guess you never know).

I doubt the state will try to argue the matter any further, but again...it's California, so I guess you never know.

 

Edited August 2, 2021 by Amulek

[Scott Lloyd]

29 minutes ago, Amulek said:

A little while back there was a thread (see, here) which included discussion of SB-219, a California law which prohibits staff members of long-term care facilities from referring to a resident by anything except the person's preferred name or pronoun. Violation of this law would incur a fine of up to $1000 or a year in jail.

Well, a California appellate court has ruled that the pronoun provision violates free speech rights. In Taking Offense v. State Of California, the court held as follows:

Sounds about right. The pronoun provision was literally a content-based restriction on speech, and I didn't expect it to survive strict scrutiny analysis (though it is California, so I guess you never know).

I doubt the state will try to argue the matter any further, but again...it's California, so I guess you never know.

 

Hurrah for freedom of speech and sanity in judicial review!

Edited August 2, 2021 by Scott Lloyd

[theplains]

43 minutes ago, Amulek said:

Sounds about right. The pronoun provision was literally a content-based restriction on speech, and I didn't expect it to survive strict scrutiny analysis (though it is California, so I guess you never know).

I doubt the state will try to argue the matter any further, but again...it's California, so I guess you never know.

I wonder if they leave birth certificates blank where the sex of the child is indicated.

[Amulek]

2 hours ago, theplains said:

I wonder if they leave birth certificates blank where the sex of the child is indicated.

There are options for that: https://www.smithsonianmag.com/smart-news/california-becomes-first-state-introduce-gender-neutral-birth-certificates-180965343/

Interestingly, the legislation which allows for such was introduced just a couple of weeks after the bill referenced in the OP.

I guess 2017 was a big year for gender issues in CA. Who knew.

 

[Calm]

5 hours ago, Amulek said:

Sounds about right. The pronoun provision was literally a content-based restriction on speech, and I didn't expect it to survive strict scrutiny analysis (though it is California, so I guess you never know).

Will a company be able to require employees to do so or be fired? 

[The Nehor]

12 minutes ago, Calm said:

Will a company be able to require employees to do so or be fired? 

Probably, this was removing a law that had the legal system penalize people. Employers can fire people for lots of things. Choosing not to use gender pronouns doesn’t put you in a protected class. It is possible state laws in some cases may influence this.

[2BizE]

This house bill in California to require proper pronouns be used is obtuse and Orwellian.  It is like requiring someone to take the sacrament with their right hand or something similar.

However, healthcare organizations recognize the importance of treating their patients (customers) well and calling them by the correct name or pronouns they prefer. This is good business. Why would legislation from the government need to mandate something that is already best practice for healthcare organizations?  
Another thing, updating healthcare electronic medical records to provide this information to the nurses, physicians, registration folks, and all other caregivers as well as customer-facing applications is not an easy task to accomplish.  

[ksfisher]

2 minutes ago, 2BizE said:

 It is like requiring someone to take the sacrament with their right hand or something similar.

Yeah, I spent six month in the clink last time I took it with my left hand. 

[Amulek]

2 hours ago, Calm said:

Will a company be able to require employees to do so or be fired? 

Yes. The First Amendment only guarantees the protection of free speech from intrusion by the federal government. The First Amendment does not apply to private actors, and employers are private actors.

Now, there are a few exceptions for employee speech which are specifically protected by federal law (e.g., speech pertaining to unionizing, whistle blowing, etc.); and there are some complications which can arise in situations where the government is acting as employer that probably aren't worth going into for purposes of this discussion; but as a general rule there wouldn't be anything illegal about an employer creating and enforcing a speech code any more than it would be for them to have and enforce a dress code.

 

[The Nehor]

1 hour ago, ksfisher said:

Yeah, I spent six month in the clink last time I took it with my left hand. 

Is that what they are calling Primary these days?

[The Nehor]

1 hour ago, Amulek said:

Yes. The First Amendment only guarantees the protection of free speech from intrusion by the federal government. The First Amendment does not apply to private actors, and employers are private actors.

This is true but the Supreme Court has held for a long time that the Fourteenth amendment extends First Amendment protections to all levels of government. Most of the Bill of Rights amendments have been similarly extended. This is usually redundant as most state constitutions include provisions similar to what is in the First Amendment.

[bOObOO]

1 hour ago, Amulek said:

Yes. The First Amendment only guarantees the protection of free speech from intrusion by the federal government. The First Amendment does not apply to private actors, and employers are private actors.

I think the First Amendment does not apply to state or local governments, either.  I work for a City which has a policy directing me to call a man a woman or refer to him by feminine pronouns, if he wants to be, while I am doing my job for the City.

I will not discuss how I feel about the policy or whether or not I comply.

[The Nehor]

29 minutes ago, bOObOO said:

I think the First Amendment does not apply to state or local governments, either.

The Supreme Court disagrees.

30 minutes ago, bOObOO said:

I work for a City which has a policy directing me to call a man a woman or refer to him by feminine pronouns, if he wants to be, while I am doing my job for the City.

I will not discuss how I feel about the policy or whether or not I comply.

That is not a First Amendment issue.

[OGHoosier]

26 minutes ago, bOObOO said:

I think the First Amendment does not apply to state or local governments, either.  I work for a City which has a policy directing me to call a man a woman or refer to him by feminine pronouns, if he wants to be, while I am doing my job for the City.

I will not discuss how I feel about the policy or whether or not I comply.

The First Amendment does apply to local and state governments. Due to the Fourteenth Amendment, state governments are prohibited from depriving Americans of privileges, immunities, life, liberty, or property without "due process of law." Per Britannica, from the 1920s to the 1940s the Supreme Court extended all of the First Amendment's protections to state and local governments. I would guess that, since local governments are in no respect sovereign relative to their state governments (as opposed to states relative to the federal government, since the states retain legislative powers with which the federal government cannot directly interfere), they are included in the injunction against state governments. 

That said, I'm inclined to believe that codes of conduct for government employees do not fall under the protection of the First Amendment. Perhaps @smac97 has more information. 

[bOObOO]

3 minutes ago, The Nehor said:

The Supreme Court disagrees.

Appearances can be deceiving.

3 minutes ago, The Nehor said:

That is not a First Amendment issue.

I think it may be because a big part of the reason I don't like to lie or misrepresent what I know is true has to do with my religion.

[The Nehor]

1 minute ago, bOObOO said:

Appearances can be deceiving.

So the Supreme Court secretly agrees with you but rules the other way? Is it those Illuminati satellite mind control lasers that are pulling this off?

2 minutes ago, bOObOO said:

I think it may be because a big part of the reason I don't like to lie or misrepresent what I know is true has to do with my religion.

You thinking it is important is completely irrelevant to whether the First Amendment is involved.

If I feel strongly enough that Turkish Delight is a nasty candy and no one should eat it the Third Amendment is not going to suddenly apply and ban the candy no matter how passionately I feel that way.

[Amulek]

40 minutes ago, bOObOO said:

I think the First Amendment does not apply to state or local governments, either. I work for a City which has a policy directing me to [...]

This is one of those situations I touched on earlier where there are some exceptions. It only applies to public employees though, and not citizens in general, so I only mentioned it in passing. 

But the courts have generally accepted that the government as employer must have more authority over government employee speech than the government as sovereign has over citizen speech.

If you're interested, you can find a pretty concise run-down of how this works here:

Quote

Rule: The government may not fire an employee based on the employee’s speech if

1. the speech is on a matter of public concern, and

2. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and

3. the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).

 

[Kenngo1969]

I'm about to reveal myself for the un-PC neanderthal that I am, but if I were in California and were subject to the provisions of the law(s) in question there, I would say, "You have four choices: I will refer to you as you, he, she, or it.  Your choice!"

Edited August 3, 2021 by Kenngo1969

[pogi]

On 8/2/2021 at 8:28 AM, theplains said:

I wonder if they leave birth certificates blank where the sex of the child is indicated.

Sex and gender are not the same.  

[bOObOO]

On 8/3/2021 at 9:06 AM, pogi said:

Sex and gender are not the same.  

When you see "sex" on a survey the appropriate response will be either male or female, and your gender if male will be that of a "he" and a female will be a she.

I found that out when I was in 5th grade and said Yes to the question of sex and my teacher explained things appropriately.

[pogi]

45 minutes ago, bOObOO said:

and your gender if male will be that of a "he" and a female will be a she.

Not always. 

Quote

I found that out when I was in 5th grade and said Yes to the question of sex and my teacher explained things appropriately.

Well...if your 5th grade teacher said so back in the 60's, 70's or 80's (I'm guessing)...I guess that settles it. 

Edited August 4, 2021 by pogi