Jail time for pronoun misuse?

A bill in California that would create a law making it a crime to “misgender” nursing home residents advanced in the state Assembly this week.

The bill, SB 219, passed the state Senate in May. Among other provisions, the proposed law would make it a criminal offense not to call elderly LGBT residents at nursing homes or intermediate-care facilities by their preferred names and pronouns. Offenders could face a fine of up to $1,000 and a year in prison.

Supporters say the measure, called the Lesbian, Gay, Bisexual, and Transgender Long-term Care Facility Residents Bill of Rights, would protect LGBT senior-care residents from discrimination and harassment. In addition to outlawing “willfully and repeatedly” failing to use a preferred name or pronoun, the bill would make it illegal to deny admission to a resident or evict a resident for their sexual orientation. It also would require facilities to open restrooms to individuals based on their gender identity.

Opponents point out three main issues with the proposed law.

First, they argue the criminalization of speech violates the First Amendment of the U.S. Constitution.

The bill would both restrict and compel speech, according to Amy Swearer, a visiting legal fellow at the Meese Center for Legal and Judicial Studies at The Heritage Foundation: “This is not simply a matter of limiting what a person may say, but compelling him or her under threat of government sanction—a criminal offense, no less—to actively speak in a way that violates his or her conscience before God.”

Greg Burt, the director of capitol engagement for the California Family Council, testified against the bill in a committee hearing. “How can you believe in free speech if you think the government can compel people to use certain pronouns when talking to others, as this bill proposes?” he said.

Second, the bill includes no religious exemptions for individuals or faith-based facilities.

“Everyone is entitled to their religious view,” said the bill’s author, state Sen. Scott Weiner, according to National Review. But, he added, that view should not come into “a public space” or interfere with the law.

Not so, countered Swearer.

“For most religious communities, the refusal to affirm a person’s gender identity stems not from hatred of LGBT individuals, but rather from a deeply held conviction of who God is and what He has revealed about human nature,” she wrote. “These beliefs, and the right to act in accordance with them, lie at the very core of First Amendment protection.”

Finally, legal experts fear the scope of the law will only expand. After all, why should this so-called protection be applied only to elderly LGBT individuals in long-term senior care?

Eugene Volokh, a professor at the UCLA School of Law, referenced a New York City Commission on Human Rights rule that an employer’s refusal to use individuals’ preferred names and pronouns constitutes “gender-based harassment.”

“It strikes me as pretty unlikely that, if this law is enacted, such prohibitions would be limited just to this scenario,” Volokh wrote in The Washington Post.