Long Term Care Facilities and LGBT Residents
Long Term Care Facilities and LGBT Residents
In 2017, California enacted SB 219 to protect against discrimination or mistreatment by a Long-Term Care Facility based on a resident’s sexual orientation or gender identity (the “Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights” – “LGBT Bill of Rights”) (Health & Saf. Code, § 1439.51.)
A group designating themselves “Taking Offense” challenged the LGBT Bill of Rights, alleging it was “unconstitutionally vague and over broad,“ asserting constitutional challenges to two provisions: (1) the pronoun provision (§ 1439.51, subd. (a)(5)), which makes it a crime for long-term care employees to “willfully and repeatedly” fail to use a resident’s preferred name and pronoun that they know; and (2) the room-assignment provision (§ 1439.51, subd. (a)(3)), which makes it unlawful for a facility that uses gender-based room assignments to non-consensually assign a transgender resident a room not matching their gender identity.
The “Taking Offense” group alleged the pronoun provision is a content-based speech restriction that violates employee’s free speech rights, and the room assignment provision violated non transgender resident’s equal protection rights because they lack the same opportunity to choose whether to be assigned a roommate based on their gender identity or their sex assigned at birth. The trial court denied the petition and the plaintiff group appealed.
The Appellate Court Ruled that criminalizing failure to use the resident’s preferred name and pronoun violates employees’ right to free speech and requiring nursing home staff to refer to transgender residents by their “preferred pronouns” violates the First Amendment[1]. The court said the pronoun provision was a “content-based restriction on speech” that runs afoul of the Constitution because it compels nursing home staff to communicate a message they may not wish to convey.
On the other challenge, the appeals court concluded that requiring gender-based room assignments in accord with resident’s gender identity does not violate equal protection. “Gender identity does not provide special rights to transgender residents; it merely clarifies that gender-based room assignments must be made in accordance with a resident’s gender identity, rather than their sex assigned at birth.” The court also held that the consensual exception permits a facility to accommodate a transgender resident’s request without creating a right that any roommate request be honored. A two-justice concurring opinion explained that the room-assignment provision could later be challenged as applied if evidence showed the exception was being applied selectively, rather than uniformly, in a long-term care facility.
LGBTQ rights advocates said that they will seek to challenge the appeals court decision tossing out the part of a California law designed to protect older transgender residents in nursing homes.
For any questions, feel free to contact Dawn: dcoulson@eppscoulson.com
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[1] The Court did not rule out other claims that could be brought on other basis than the Bill of Rights, for instance, harassment, discrimination, unfair business practices, etc. Long Term Care facilities employers would be mindful to consider HR policies to address these risks.