Taking Offense v. State of California CA3 Case Details, C088485

In 2017 California enacted SB 219, adding Health & Safety Code §1439.51 et seq. to protect LGBT long-term care residents; key provisions: (a)(3) (room assignments) and (a)(5) (pronoun use).
§1439.51(a)(5) makes it unlawful for facility staff to "willfully and repeatedly" refuse to use a resident’s preferred name or pronouns after being clearly informed; violations may be misdemeanors with fines/jail.
§1439.51(a)(3) requires gender-based rooming to follow a transgender resident’s gender identity unless the transgender resident requests otherwise; statute excludes conflicts with reasonable clinical judgment.
Taking Offense (an unincorporated association) filed a facial writ challenging (a)(5) on First Amendment, vagueness, overbreadth, and free exercise grounds; and challenging (a)(3) on equal protection and freedom of intimate association grounds.
Trial court denied relief; on appeal the court reversed the judgment as to (a)(5) (First Amendment) and affirmed as to (a)(3) (equal protection).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of §1439.51(a)(5) (pronoun provision) under the First Amendment	Provision is content- and viewpoint-based restriction; compels or forbids speech and burdens conscience/religion; vague/overbroad	Statute is content-neutral time/place/manner regulation protecting captive, vulnerable residents and preventing discrimination; alternatives are inadequate	Provision is facially content-based; strict scrutiny applies. State has compelling interest but statute is not narrowly tailored (overinclusive/criminalizes isolated misgendering). Reversed as to (a)(5).
Constitutionality of §1439.51(a)(3) (room-assignment provision) under Equal Protection / intimate association	Provision grants transgender residents "special rights" to choose accommodations, disadvantaging non-transgender residents and invading their intimate association/privacy	Provision merely requires rooming follow a transgender resident’s gender identity (unless resident requests otherwise) and does not compel facilities to honor roommate requests; no invidious classification	Transgender and non-transgender residents are similarly situated for this context, but provision does not facially confer unequal or special rights that violate equal protection or intimate association. Affirmed as to (a)(3).

Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech restrictions trigger strict scrutiny)
Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (content-based regulation of professional speech scrutinized)
McCullen v. Coakley, 573 U.S. 464 (law is content-based if enforcement requires examining message)
Ashcroft v. ACLU, 542 U.S. 656 (government must use least restrictive means for content-based restrictions)
Bostock v. Clayton County, 140 S. Ct. 1731 (discrimination "because of sex" includes transgender status)
Wooley v. Maynard, 430 U.S. 705 (First Amendment protects the right to refrain from compelled speech)
West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (state may not compel affirmation of belief)
Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (government cannot force a speaker to host another's message)
Meritor Savings Bank v. Vinson, 477 U.S. 57 (hostile-work-environment standard; isolated remarks may not suffice)
New York Times Co. v. Sullivan, 376 U.S. 254 (civil penalties and chilling effect; civil remedies can chill speech)