By DON THOMPSON, Associated Press
SACRAMENTO, Calif. (AP) – Gay rights advocates said Monday they would seek to challenge an appeals court ruling dismissing part of a California law designed to protect older LGBTQ residents in nursing homes nurses.
The 2017 law aims to protect against discrimination or ill-treatment based on the sexual orientation or gender identity of residents.
The Third District Court of Appeals struck down the part of the law prohibiting employees of long-term care facilities from voluntarily and repeatedly using anything other than residents’ preferred names and pronouns.
The ban violates employees’ rights to freedom of expression, the court ruled on Friday.
“The law requires staff in long-term care facilities to change the message they prefer to convey,” the court said, adding that the ban “weighs more than necessary” to achieve the state’s goal of ” eliminate discrimination, including harassment on the basis of sex.
Referring to residents other than by their preferred gender “can be disrespectful, discourteous and insulting,” Associate Judge Elena Duarte wrote on behalf of the three-judge panel. But it can also be a way of “expressing ideological disagreement with the gender identity expressed by another person”.
“The pronoun provision at issue here tests the limits of the government’s power to restrict pure speech which, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment,” she wrote, adding italics to “potentially” and “necessarily.”
Democratic Senator Scott Wiener, who passed the law, said the deliberate use of a wrong name or pronoun is “outright harassment” and “erases an individual’s basic humanity.”
Rick Chavez Zbur, executive director of Equality California, which bills itself as the largest statewide LGBTQ + civil rights organization, said the use of the wrong name and pronoun is “a hateful act which robs someone of their dignity and truth” and can lead to depression and even suicide.
The two said they would fight the decision, without specifying what it would mean.
It’s a decision by the state attorney general’s office, which has defended the law in court, said Joshua Stickney, spokesperson for Equality California.
The attorney general’s office said it is reviewing the decision and considering next steps.
The appeals court upheld a disputed second part of the law prohibiting facilities or employees from allocating rooms based on anything other than the gender identity of a transgender resident.
A Sacramento County judge previously dismissed both sides of the lawsuit.
The law was challenged by Taking Offense, described in the ruling as an “unincorporated association that includes at least one California citizen and taxpayer who has paid taxes to the state in the past year.”
The plaintiff’s lawyer, David Llewellyn Jr., did not respond to telephone and email messages.
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