California High Court: Nursing Home Staff Can Be Jailed For Willfully Misgendering Seniors
The California Supreme Court handed down a ruling Tuesday that reinstates a contentious law punishing long-term care staff who refuse to use a resident’s preferred pronouns.
In a reversal of a lower appellate court decision, the justices ruled that the “LGBT Long-Term Care Residents’ Bill of Rights” regulates professional conduct rather than protected speech, meaning nursing home workers can face fines and even jail time for “willfully and repeatedly” misgendering elderly residents.
The case, Taking Offense v. State of California, pitted the state’s interest in preventing discrimination against the First Amendment rights of employees. The plaintiff, a group describing itself as opposing the “transgender fiction,” argued that the law unconstitutionally compelled speech by forcing workers to voice words they disagree with ideologically.
The Court of Appeal had previously agreed, striking down the provision as a violation of free speech. However, the state’s highest court rejected that view, treating the nursing home environment as a unique setting where residents are a “captive audience” effectively trapped in their own homes.
Chief Justice Guerrero, writing for the majority, emphasized that the law does not criminalize accidental slip-ups. The statute targets specific behavior: the “willful” and “repeated” failure to use preferred names or pronouns after being clearly informed of them.
The court reasoned that in a medical setting, such behavior amounts to harassment that compromises the care of vulnerable patients. The justices drew a distinction between the “marketplace of ideas” in a public square and the intimate, closed environment of a nursing home where seniors rely on staff for basic hygiene and survival.
To support the necessity of the law, the court cited specific data regarding the isolation and mistreatment of LGBT seniors.
According to a 2013 study referenced in the opinion, nearly 60 percent of LGBT seniors in San Francisco lived alone, lacking the family support networks available to other groups. Furthermore, a 2011 study indicated that 43 percent of respondents had personally witnessed or experienced mistreatment in long-term care, including refusal of admission or staff refusing to use preferred names.
The court explicitly addressed the intersection of race and gender identity in its footnotes, relying on data to show that minority groups face compounded discrimination in medical settings.
The opinion cited a 2021 report finding that 46 percent of transgender respondents of color reported that a doctor had intentionally used the wrong name to refer to them in the prior year, compared to 32 percent of transgender respondents overall. These statistics underscored the state’s argument that misgendering is a barrier to medical access for specific demographic groups.
The ruling confirms that the penalties for violating the statute are significant. Under the Health and Safety Code, egregious violations—those that are willful and repeated—can be prosecuted as misdemeanors.
Convicted staff members could face a fine of up to $2,500 or imprisonment in county jail for up to 180 days. The court noted that while criminal penalties are reserved for extreme cases, the state has the authority to enforce dignity in care facilities through such measures.
Procedurally, the court made a notable finding regarding “taxpayer standing.” The justices determined that the plaintiff actually lacked the proper legal standing to sue the state under the amended Code of Civil Procedure section 526a, which strictly applies to local agencies rather than state entities.
However, due to the significant public interest in the constitutionality of the statute, the court exercised its discretion to rule on the merits of the case anyway, effectively settling the issue for the foreseeable future. The law is now fully enforceable across California.
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