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California Supreme Court to Decide if Pronoun Misuse Can Lead to Jail Time

  • Michael Foust Crosswalk Headlines Contributor
  • Updated Nov 18, 2021
California Supreme Court to Decide if Pronoun Misuse Can Lead to Jail Time

The California Supreme Court has agreed to hear a major free speech case involving a law that criminalizes “misgendering” individuals by not using their preferred pronouns.

The multi-faceted law placed new restrictions on long-term care facilities and was geared toward protecting LGBT residents – yet a section on pronouns has sparked major pushback.

The controversial section makes it unlawful to “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” Violating the law could subject the employee to criminal penalties, including fines and jail time.

The California Supreme Court agreed last week to take the case. This summer, a three-judge panel of the California Court of Appeals unanimously struck down the controversial pronoun section of the law.

The law was signed in 2017 by then-Gov. Jerry Brown.

Greg Burt, director of capitol engagement with the California Family Council, argues the law violates free speech.

“How can you believe in free speech but think the government can compel people to use certain pronouns when talking to others,” Burt told legislators when the law was being considered. “Compelled speech is not free speech. Can the government compel a newspaper to use certain pronouns that aren’t even in the dictionary? Of course not, or is that coming next?

“Those proposing this bill are saying, ‘If you disagree with me about my view of gender, you are discriminating against me,’” Burt told legislators. “This is not tolerance. This is not love. This is not mutual respect. … True tolerance tolerates people with different views.  We need to treat each other with respect, but respect is a two-way street. It is not respectful to threaten people with punishment for having sincerely held beliefs that differ from your own.”

This summer, the California Court of Appeals agreed with Burt.

“We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person's expressed gender identity,” the Court of Appeals ruled. “But the First Amendment does not protect only speech that inoffensively and artfully articulates a person's point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person's gender identity may be different from the sex the person was assigned at birth.”

The California Supreme Court, though, may have the last word.


Court Overturns Calif. Law that Criminalizes Pronoun Misuse

Photo courtesy: ©Getty Images/Elizabeth Lara

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.