Court: It's Free Speech for Nursing Homes to Deadname, Misgender Residents

by Kilian Melloy

EDGE Staff Reporter

Wednesday July 21, 2021
Originally published on July 21, 2021

A July 19 court ruling upheld the right of nursing home staff to use misgendering pronouns and to deadname residents, asserting that a refusal to use people's preferred pronouns is a matter of free speech, the Associated Press reported.

The case addressed a California state law from 2017 "intended to protect against discrimination or mistreatment based on residents' sexual orientation or gender identity," the AP report said.

"The Third District Court of Appeal overturned the part of the law barring employees of long-term care facilities from willfully and repeatedly using anything other than residents' preferred names and pronouns," the AP recounted.

"In doing so, the law banned employees from using the incorrect pronouns for trans residents, also known as misgendering them, or using their legal name, also known as deadnaming them."

But that law "burdens speech more than is required," ruled Third District Court of Appeal, going on to say that misgendering and deadnaming a care facility resident is a legitimate way "to express an ideological disagreement with another person's expressed gender identity."

"The pronoun provision at issue here tests the limits of the government's authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment," Associate Justice Elena Duarte wrote on behalf of a panel of three judges.

State Sen. Scott Wiener, a proponent of the law, disagreed with the court's finding, calling a facility worker's use of deadnaming or misgendering "straight up harassment" that "erases an individual's fundamental humanity," the AP story said.

The head of Equality California, Rick Chavez Zbur, agreed, saying such disrespectful toward care facility residents is "a hateful act that denies someone their dignity and truth," and vowing — as did state Sen. Wiener — to "fight the ruling".

The ruling comes even as there is a growing awareness that LGBTQ elders too often face discrimination and abuse due to their sexual orientation or gender identity.

The court's decision follows that of a judge in northern Virginia who ruled last month in favor of a teacher who had been suspended for saying he would refuse to abide by a proposed rule that school staff respect the pronoun preferences expressed by students.

"Loudoun County Circuit Court Judge James Plowman ruled that teacher Tanner Cross was exercising his right to free speech when he told the board he could not abide by the proposal based on his religious beliefs," the AP reported at the time. "His order requires Cross' immediate reinstatement until a full trial can be held."

Tanner had declared at the May 25 school board meeting where the policy was proposed that respecting a student's wishes with regards to pronouns he disagreed with would be to "lie to them" and constitute "abuse to a child."

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.