California Court Strikes Down Law That Criminalized Certain Uses of Non-Preferred Pronouns

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2021-07-20 13:30:05

Eugene Volokh | 7.17.2021 6:18 PM

In Taking Offense v. California, decided yesterday by the California Court of Appeal, in an opinion by Justice Elena Duarte, joined by Justices Harry Hull and Ronald Robie, the court considered (among other things) the constitutionality of Cal. Health & Safety Code § 1439.51(a)(5) which provides, in part,

[I]t shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person's … gender identity[ or] gender expression …: Willfully and repeatedly fail to use a resident's preferred name or pronouns after being clearly informed of the preferred name or pronouns." …

The court concluded the pronoun portion of the law was a content-based speech restriction (it didn't discuss the name portion in detail):

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