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Jail Time for Using the Wrong Pronoun

09/10/18 9:57 AM

Most physicians defer to patients’ wishes as to how they want to be called. It’s a sign of deferential respect. If there’s a 40-year age discrepancy between a young treating physician and an elderly Medicare patient, the senior likely doesn’t want to be called Pops.  

There’s a brewing brouhaha in California related to Senate Bill 219 which was signed into law. It is also known as the LGBT Senior Bill of Rights. The Bill’s author is Scott Wiener. 

Here’s the introductory text of the bill itself: 

This bill would enact the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights. Among other things, the bill would make it unlawful, except as specified, for any long-term care facility to take specified 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, including, among others, willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns, or denying admission to a long-term care facility, transferring or refusing to transfer a resident within a facility or to another facility, or discharging or evicting a resident from a facility. The bill would also provide certain protections to all residents of long-term care facilities during, among other things, physical examinations or treatments, relating to bodily privacy. The bill would define long-term care facility for purposes of these provisions to include skilled nursing facilities, intermediate care facilities, and residential care facilities for the elderly. The bill would also, among other things, require each facility to post a specified notice regarding discrimination alongside its current nondiscrimination policy in all places and on all materials where the nondiscrimination policy is posted. The bill would require a violation of these provisions to be treated as a violation under the Long-Term Care, Health, Safety, and Security Act of 1973, the California Residential Care Facilities for the Elderly Act, or specified provisions providing for the licensure and regulation of health facilities, which may include the imposition of civil penalties. By expanding the definition of existing crimes, the bill would impose a state-mandated local program. (emphasis added) 

The bill is narrowly focused on long term care facilities. 

It makes it unlawful to willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.” 

Guidance from the University of Wisconsin at Milwaukee (LGBT Resource Center) clarifies: 

What are some commonly used pronouns? 

She/her/hers and he/him/his are a few commonly used pronouns. Some people call these “female/feminine” and “male/masculine” pronouns, but many avoid these labels because not everyone who uses he feels like a “male” or “masculine.” 

There are also lots of gender-neutral pronouns in use. Here are a few you might hear: 

They/them/theirs (Shea ate their food because they were hungry.) This is a pretty common gender-neutral pronoun and it can be used in the singular. In fact, “they” was voted as the Word of the Year in 2015. 

Ze/hir/hir (Tyler ate hir food because ze was hungry.) Ze is pronounced like “zee” can also be spelled zie or xe, and replaces she/he/they. Hir is pronounced like “here” and replaces her/hers/him/his/they/theirs. 

Just my name please! (Ash ate Ash’s food because Ash was hungry) Some people prefer not to use pronouns at all, using their name as a pronoun instead. 

Never refer to a person as “it” or “he-she”. These are offensive slurs used against trans and gender non-conforming individuals. 

Violations of Senate Bill 219 could, under limited circumstances, be treated as a misdemeanor with punishment of up to one year of jail time and /or $1,000 fine. 

To be clear, to violate the law, the healthcare professional treating patients in a long-term care facility would need to use the wrong gender pronouns repeatedly and willfully. Further, proponents of the bill have argued that punishment would only ensue if the patient were placed at risk of death or serious physical harm. If accurate, that is a high bar.  

Such reassurances would come as cold comfort for a doctor having to defend against innocent mistakes even if he prevails in court. He wouldn’t really win; just lose less. 

If a patient wants to be called any collection of consonants or vowels, most doctors don’t care. They are busy and not going out of their way to offend their patients. Still, you don’t have to be a rocket scientist to see how a misunderstanding in language could create additional headaches for a well-meaning practitioner.  

If any doctor is charged with this offense, he/she/etc likely will have a strong Constitutional defense based on the First Amendment. Of course, not all speech is legal. You cannot yell fire in a crowded venue (when there’s no fire). You cannot use speech to incite an imminent riot. Defamation is unlawful. And “obscenity” is not protected speech. The list of unlawful speech is small. Hard to say whether the federal Constitution will allow the state to criminalize being a jerk.  

What do you think? 



About the Author

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.


 

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Mark williamsIftikhar KhanMichael Rosenblatt, DPMEasyEMichael Prater MD Recent comment authors
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Joe Horton
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Joe Horton

It’s not necessary to accept a patient. But once you do, they’re your patient. These are people I wouldn’t accept as patients. I’m not about to walk on verbal eggshells when I’m taking care of someone. There are much larger fish to fry.

CA MD
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CA MD

If anyone had any doubts that California now considers itself exempt from federal law, this latest civil rights outrage should resolve them. Even as Californians voted to release real, scary violent criminals from prison, they have enacted laws like this that create new crimes and new criminals from people the rest of the country would consider upstanding citizens. As U.S. District Court judge Roger Benitez put it, referring to California’s infamous 2016 Gunmageddon package of new gun control laws, “any previously law-abiding person in California who still possesses a firearm magazine capable of holding more than 10 rounds will begin… Read more »

retired
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retired

Unfortunately common sense has left the building. While no one is going to use the wrong pronoun when so informed, IF THEY CAN REMEMBER, that would be difficult in a long term care facility where one physician may have to see dozens of patients. This bill is also narrowly constructed such that it only applies in long term care facilities. It would seem that that would violate basic protections to have law uniformly applicable, not narrowly tailored for just one circumstance. In addition the free speech rights of the physician or other healthcare provider so this bill is likely unconstitutional.… Read more »

Michael Prater MD
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Michael Prater MD

The Granola State- if you aren’t a flake you are a fruit or a nut….or a Ze or a Hir.

Mark williams
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Mark williams

LOL!!

EasyE
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EasyE

Useless and unnecessary legislation by another Weiner. Does Scott go by hir, and ze? These are NOT words.

Michael Rosenblatt, DPM
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Michael Rosenblatt, DPM

For those interested in HOW this all got started, it came from Leftist political forces which started in Canada. Briefly, a group of Leftist activists “convinced” Canada politicians to criminalize the refusal to use DIRECTED pronouns for transgender people. This transmogrified into CRIMINAL liability from a “Civil rights panel” which has the power and force of prison incarceration and enormous fines behind it. But a courageous professor, Jordan Peterson, Ph.D. inaugurated a fight against it. He now has an enormous internet presence and an interesting book, which has been a best seller for months. This came at some personal cost… Read more »

Iftikhar Khan
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Iftikhar Khan

Time to retire!! Time to live elsewhere!!