“The law compels long-term care facility staff to alter the message they would prefer to convey,” the court reasoned, adding that the ban “burdens speech more than is required” to reach the state’s objective of eliminating discrimination including harassment on the basis of sex.
Referring to residents other than by their preferred gender “may be disrespectful, discourteous, and insulting,” Associate Justice Elena Duarte wrote on behalf of the three-judge panel. But it can also be a way “to express an ideological disagreement with another person’s expressed gender identity.”
“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.”