The Courts Did It Again

They okay’d harmful speech in long term care facilities as protected speech.

Pictured this… you are suffering from a fatal disease in your senior years and you are confined in a hospice, the staff uses the wrong pronouns and deadnames you causes undue emotional and physiological harm but there is nothing you can do about it because the court ruling that they have a First Amendment right to cause you harm.

Nursing homes can deadname transgender seniors, court rules
Using a trans senior's birth name allows nursing home staff “to express an ideological disagreement" with a person's gender identity, one judge wrote.
NBC News
By AP
July 20, 2021


LGBTQ rights advocates said Monday that they will seek to challenge an appeals court decision tossing out part of a California law designed to protect older transgender residents in nursing homes.

The 2017 law is intended to protect against discrimination or mistreatment based on residents’ sexual orientation or gender identity.

The Third District Court of Appeal [Third District of the California Courts of Appeal.] overturned the part of the law barring employees of long-term care facilities from willfully and repeatedly using anything other than residents’ preferred names and pronouns. In doing so, the law banned employees from using the incorrect pronouns for trans residents, also known as misgendering them, or using their legal name, also known as deadnaming them.

That ban violates employees’ rights to free speech, the court ruled Friday.

What about our rights!

Using our deadnaming and misgendering causes us harm!

“The pronoun provision at issue here tests the limits of the government’s authority to restrict pure speech that, while potentially offensive or harassing to the listener, does not necessarily create a hostile environment,” she wrote, adding italics to “potentially” and “necessarily.”

So deadnaming and misgendering “…does not necessarily create a hostile environment…” spoken by a cisgender white judges.

Democratic state Sen. Scott Wiener, who carried the law, said deliberately using the wrong name or pronoun is “straight up harassment” and “erases an individual’s fundamental humanity.”

But causing us anxiety, depression, and other medical problems is okay. The Washington Blade wrote,

“The Court’s decision is a beyond disappointing, especially for our state’s transgender and nonbinary seniors. Let’s be clear: refusing to use someone’s correct name and pronouns isn’t an issue of free speech — it’s a hateful act that denies someone their dignity and truth,” said Equality California’s Executive Director Rick Chavez Zbur.

“Study after study has shown that trans people who are misgendered face alarming and life-threatening rates of depression and suicidal behavior. And older LGBTQ+ people face feelings of isolation, poor mental health and extreme vulnerability to communicable diseases like COVID-19. California’s nursing home patients deserve better than this — and we’ll be fighting until this decision is overturned,” he added.

In another Washington Blade article they quote Senator Scott Wiener (D-San Francisco)…

“The Court’s decision is disconnected from the reality facing transgender people. Deliberately misgendering a transgender person isn’t just a matter of opinion, and it’s not simply ‘disrespectful, discourteous, or insulting.’ Rather, it’s straight up harassment. And, it erases an individual’s fundamental humanity, particularly one as vulnerable as a trans senior in a nursing home. This misguided decision cannot be allowed to stand,” Senator Wiener said in a statement.

But our rights take a backseat.

Courts after courts have ruled that there are limits to the First Amendment when it causes harm to others, they are called “fighting words,” Cornell Law School says this about fighting words.

Fighting words are, as first defined by the Supreme Court (SCOTUS) in Chaplinsky v New Hampshire, 315 U.S. 568 (1942), words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

“…by their very utterance, inflict injury…” the Third District Court of Appeal seems to have forgotten that little item or do not consider us harmed by the microaggressions.