Lawmakers in California have recently proposed a bill, officially known as SB 219, designed to protect the elderly Lesbian, Gay, Bisexual, and Transgender (LGBT) community from discrimination. If passed, however, care facility workers would be punished with a fine and jail time if they refuse to use a patient’s preferred name or “gender pronoun,” which is in violation of the First Amendment.
Specifically, the legislation, known as the “Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Resident’s Bill of Rights,” prohibits long-term care facilities from discriminating against people “on the basis of [their] actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status.”
If it becomes law, care facilities would be punished with fines “as high as $1,000” and a “jail term of up to a year” for “denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or discharging or evicting a resident from a facility [because of their gender identity].” The legislation, sponsored by Equality California, which is a nonprofit civil rights organization that “advocates for the rights of LGBT people in California,” would also punish people for “willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”
This means that someone could literally be fined and thrown in jail for simply refusing to call a biological man “she,” or a biological female “he.” Not only is this completely absurd, it’s also in violation of the First Amendment, which protects people from compelled speech.
The Supreme Court has made this clear first in West Virginia State Board of Education v. Barnette and later in Wooley v. Maynard. In both cases, the Court ruled that “the right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all.” By saying this, the court is basically claiming that while the federal government can prohibit particular types of speech, such as explicit language, it can’t force people to use “government-sanctioned” words.
Despite the fact that SB 219 violates the First Amendment, Senator Scott Wiener (D-San Francisco) introduced it anyway. To justify the legislation, Wiener brought up the fact that LGBT seniors paved the way for the modern gay rights movement. “Our LGBT seniors built the modern LGBT community and were on the front lines of so many battles to expand our civil rights and fight the AIDS epidemic in its earliest and most horrific days. They deserve to age with dignity and respect, and that means making sure our long-term care facilities have culturally competent policies and procedures in place,” he reasoned.
“Our community of LGBT seniors is growing, and as more and more LGBT people reach senior status, we need to ensure that our laws embrace their reality,” he continued, noting, “while LGBT seniors face many of the same challenges that all seniors face, they also face unique challenges around discrimination, health, and potential lack of family support systems.”
Assemblymember David Chiu (D-San Francisco), who coauthored the bill, added, “all seniors should be treated with dignity and respect regardless of their sexual orientation, gender identity, gender expression or HIV status. I look forward to working with Senator Wiener, Equality California, and other LGBT leaders to be sure all seniors are protected and respected in long-term care facilities.”
Unsurprisingly, Rick Zbur, the Executive Director of Equality California, also came out in support of the legislation. “Our LGBT elders deserve to be treated with dignity and respect in the latter years of their lives. Many members of our community do not have children or other family members to care for them, and LGBT people in long-term care facilities can experience conditions that are insensitive, uncaring and sometimes hostile, forcing them back into the closet,” stated Zbur. “This bill will help ensure that all LGBT seniors receive culturally competent care, regardless of gender identity or sexual orientation,” he noted.
Conservatives must not let lawmakers in California pass SB 219. Doing so would jeopardize the free speech of everyone in the state by making it possible for people to get fined and jailed for essentially not using “government sanctioned” words.