The California State Senate is considering a bill that would make it a crime to “willfully and repeatedly” refuse “to use a transgender resident’s preferred name or pronouns” in a public health, retirement or housing institution. State Sen. Scott Wiener (D-San Francisco) has introduced SB 219 with a variety of transgender protections but the pronoun controversy is likely to get the most attention. Violators face a year in jail and a potential $1000 fine. The criminalization of pronoun misuse however could raise serious free speech and other constitutional concerns.

The bill imposes the limitations on long-term care facilities and staff but critics believe that it will lay the foundation for a broader law to apply to public schools and other facilities. The law states in part:

(a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status: . . . (3) Where rooms are assigned by gender, assigning, reassigning, or refusing to assign a room to a transgender resident other than in accordance with the transgender resident’s gender identity, unless at the transgender resident’s request. (4) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom available to other persons of the same gender identity, regardless of whether the resident is making a gender transition or appears to be gender-nonconforming. Harassment includes, but is not limited to, requiring a resident to show identity documents in order to gain entrance to a restroom available to other persons of the same gender identity. (5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns. (6) Deny a resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other resident.

There remains a debate over the free speech rights of academics and others in refusing to use a wide array of new pronouns — as we have discussed previously . Those who object have stated religious, political, and legal objections to the required use of pronouns like “they” for single individuals or “ze” or “em” or “er.” Given this relatively new debate, the question is why the state should criminalize pronoun abuse.

What do you think?

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