The San Francisco Board of Supervisors unanimously passed a resolution September 14 calling on the state Supreme Court to protect the rights of LGBTQ seniors, particularly those who are transgender or nonbinary, amid a legal battle over requiring employees at senior care facilities to address residents by their preferred names and pronouns.
As the Bay Area Reporter reported last week, gay District 8 Supervisor Rafael Mandelman introduced the resolution urging the state's highest court to reverse a lower court ruling that struck down part of the state's LGBTQ Senior Bill of Rights as unconstitutional.
State Attorney General Rob Bonta, a straight ally, filed a similar petition of review with the state's highest court last month. That came after certain anti-discrimination protections were struck down by a three-judge panel of the 3rd District California Court of Appeal in Sacramento.
In a statement Tuesday to the B.A.R., Mandelman said that the city's elected representatives have spoken loud and clear.
"Today's unanimous vote sends a strong message that the San Francisco Board of Supervisors will not stand by while the rights of our LGBTQ seniors are rolled back," Mandelman stated. "The intentional misgendering of trans and gender-nonconforming people is a harmful act that no one, especially vulnerable people living in long-term care facilities, should face. I hope that the California Supreme Court will put an end to this harm and restore all of SB 219's protections for LGBTQ seniors and other long-term care facilities in California."
In the case of Taking Offense v. California, the three-judge appellate panel came to a unanimous decision that these protections — which had required long-term care staff to refer to facility residents by their preferred names and pronouns — imperiled freedom of speech and the free exercise of religion.
"We agree with Taking Offense that ... the pronoun provision, is a content-based restriction of speech that does not survive strict scrutiny," Justice Elena J. Duarte stated in the ruling. "A person's right to speak freely prohibits the government from compelling adoption of a government message and protects the right of citizens to refrain from speaking."
In a concurring opinion, Justice Ronald B. Robie stated that the goal of the LGBTQ Senior Bill of Rights was laudable but that it "went too far." He suggested the Legislature try again.
"To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel," Robie stated. "Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation."
The LGBTQ Senior Bill of Rights, also called Senate Bill 219, had been introduced by gay state Senator Scott Wiener (D-San Francisco). He has denounced the court's ruling and called on the state Supreme Court to reverse it.
Wiener stated to the B.A.R. September 14 that, "I'm grateful to the Board of Supervisors for standing up for trans seniors and for our legislation to protect them. We need to make sure this terrible legal ruling gets fixed."
A draft copy of Mandelman's resolution made available to the B.A.R. "urges the Supreme Court of California to review the Court of Appeal ruling in Taking Offense v. California and to restore all of SB 219's protections for LGBTQ seniors and other long-term care facility residents."
It cites statistics showing "numerous studies of transgender and nonbinary people have found that misgendering can cause great personal harm."
"One 2014 study of around 130 transgender adults finding that 32.8% of participants said they felt 'very stigmatized' when they were misgendered, and a 2020 review of 20 studies published since 2009 finding that the more frequently a trans person was misgendered, the more likely they were to experience distress," the resolution states.
The appellate court panel "failed to acknowledge the serious harm caused by the intentional misuse of transgender people's names and pronouns," the resolution states, concluding with the instruction that if passed by the board, the clerk should transmit a copy to the state Supreme Court.
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