TAKING OFFENSE,
S270535
IN THE SUPREME COURT OF CALIFORNIA
November 6, 2025
Third Appellate District C088485; Sacramento County Superior Court 34-2017-80002749-CU-WM-GDS
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Groban, Evans, and Jenkins* concurred.
Chief Justice Guerrero filed a concurring opinion, in which Justices Corrigan and Groban concurred.
* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to
Justice Kruger filed a concurring opinion, in which Justice Liu concurred.
TAKING
S270535
Opinion of the Court by Guerrero, C. J.
In 2017, the Legislature enacted the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights. (Stats. 2017, ch. 483, amending
Only one aspect of the enactment is at issue in this court.
Before the pronouns provision went into effect, Taking Offense (plaintiff), which describes itself as an entity dedicated to opposing efforts “to coerce society to accept [the] transgender fiction that a person can be whatever sex/gender s/he thinks s/he is, or chooses to be,” filed a petition for a writ of mandate in the superior court seeking to block enforcement of the pronouns provision as facially unconstitutional under the First Amendment to the United States Constitution. After the trial court denied the petition, the Court of Appeal reversed in part, holding that the challenged provision violates the First Amendment because it is insufficiently tailored to address the state’s interest in eliminating discrimination, and hence is facially unconstitutional. (Taking Offense v. State of California (2021) 66 Cal.App.5th 696, 702–703, 718–721 (Taking Offense).)
In
On the merits, the State asserts that the pronouns provision survives plaintiff’s challenge under the First Amendment. In addressing this question, we emphasize the
narrow context in which the challenged statute operates. It seeks to protect long-term care residents’ right to be free from discrimination in a setting in which they constitute a “captive audience” in what has become, in effect, each resident’s home. The provision regulates conduct by staff persons whose job is to provide and support medical treatment and intimate personal care — thereby seeking to promote an environment conducive to such treatment and care. It is carefully calibrated and does not restrict long-term care facilities’ staff from expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering3 a resident — and even then, the prohibition is limited to willful, repeated, knowing acts done because of a legally protected characteristic. In light of this unique setting and scope, we conclude that the provision should be analyzed, and upheld, as a regulation of discriminatory conduct that incidentally affects speech. It should not be subject to First Amendment scrutiny as an abridgment of the freedom of speech. And even assuming the statute were subject to intermediate scrutiny, we find the provision easily satisfies that test.
Finally, we conclude that the possibility of enforcement by way of pre-existing criminal penalties for particularly egregious violations of the statute does not render the challenged pronouns provision facially unconstitutional. Accordingly, we reverse the appellate court’s judgment.
A. The LGBT Long-Term Care Residents’ Bill of Rights
Various long existing laws prohibit discrimination — including discrimination on the basis of gender identity and gender expression — in public accommodations and related residential settings. For example, the Unruh Civil Rights Act (
In enacting the LGBT Long-Term Care Residents’ Bill of Rights in 2017, the Legislature asserted that although these and related existing laws already prohibit such discrimination, their “promise . . . has not yet been fully actualized in long-term care facilities.” (Stats. 2017, ch. 483, § 1, subd. (e).) The Legislature sought “to accelerate the process of freeing LGBT residents and patients from discrimination, both by specifying prohibited discriminatory acts in the long-term care setting and by providing additional information and remedies to ensure that
LGBT residents know their rights and have the means to vindicate them.” (Ibid.)
In support of its enactment, the Legislature articulated various findings. It cited its own prior conclusions, expressed a decade earlier, concerning the challenges faced by LGBT seniors who need access to long-term health care services, yet because of “ ‘lifelong experiences of marginalization,’ ” “ ‘avoid accessing elder programs and services, even when their health, safety, and security depend on it.’ ” (Stats. 2017, ch. 483, § 1, subd. (a).) The Legislature found that such seniors often “must rely on others for necessary care and services,” and “may no longer enjoy the privacy of having their own home or even their own room.” (Id., subd. (b).) Moreover, the Legislature found a 2013 study of LGBT seniors in San Francisco disclosed that nearly 60 percent lived alone, “[m]any reported poor physical and mental health,” and “as compared to seniors in San Francisco generally, LGBT seniors have a heightened need for care, but often lack family support networks available to non-LGBT seniors. Further, LGBT seniors’ fear of accessing services is
The Legislature cited a 2011 study relating that “43 percent of respondents reported personally witnessing or experiencing instances of mistreatment of LGBT seniors in a long-term care facility, including all of the following: being refused admission or readmission, being abruptly discharged, verbal or physical harassment from staff, staff refusal to accept medical power of attorney from the resident’s spouse or partner, discriminatory restrictions on visitation, and staff refusal to
refer to a transgender resident by his or her preferred name or pronoun.” (Stats. 2017, ch. 483, § 1, subd. (c), italics added.)
The Legislature comprehensively addressed each of the above-italicized problems by adopting
permitted for any other resident. . . .” (
(a) concerns medical information privacy. Subdivision (b) governs a resident’s autonomy privacy when unclothed.
The LGBT Long-Term Care Residents’ Bill of Rights did not establish a new enforcement mechanism. Instead, it enacted
B. Petition for Writ of Mandate
Plaintiff describes itself as “an unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the past year.” Its stated mission is to oppose “the rising ‘cancel culture’ and all efforts of the Legislature, the courts or the privatе sector to silence public debate in opposition to the official, progressive nonbinary gender paradigm and transgenderism.” In December 2017, before the enactment went into effect, plaintiff filed a petition for a writ of mandate in the superior court against the State. The petition asserted that the court “has jurisdiction over this action pursuant to
and
C. Proceedings in the Trial Court
The trial court’s order resolving these facial challenges observed that plaintiff had filed a “ ‘taxpayer’s suit’ pursuant to . . .
Regarding plaintiff’s various First Amendment challenges, the trial court observed that although
long-term health care resident’s pronouns and name, plaintiff did not challenge the provision’s “protections regarding use of the resident’s preferred name.” The court next disagreed with the State’s assertion that the provision “regulates conduct to which speech is incidental” and hence “does not trigger heightened review under the First Amendment.” Undertaking such heightened review, the court determined the pronouns provision to be an enforceable “content-neutral ‘time, place, and manner’ restriction on speech.” The court found the provision to be “narrowly tailored to serve a significant state interest in preventing discrimination and harassment.”
The trial court rejected plaintiff’s assertion that the challenged provision impermissibly “deprives long-term care facility staff of the ‘right to express offensive speech’ ” (italics added), and characterized the provision as having no application “outside of work.” It rebuffed plaintiff’s assertion that the challenged provision “unconstitutionally compels and censors speech content,
D. Proceedings in the Court of Appeal
The appellate court reversed. It rejected the argument that
instead found it to be content based. (Taking Offense, supra, 66 Cal.App.5th at pp. 709–712.) Moreover, the Court of Appeal held that the law is subject to, and does not survive, strict scrutiny. (Id. at pp. 712–721.) The court agreed with the trial court that a compelling state interest exists to eliminate discrimination in long-term care facilities (id. at p. 717), but held the challenged provision — whether enforced through civil or criminal penalties — is “overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest.” (Id. at p. 720.) The court characterized the provision as “criminalizing occasional, off-hand, or isolated instances of misgendering, that need not occur in the resident’s presence and need not have a harassing or discriminatory effect on the resident’s treatment or access to care” — and concluded that doing so is not “necessary to advance” the Legislature’s legitimate goals. (Id. at p. 721.)7 The parties did not brief, and the Court of Appeal did not address, whether plaintiff has standing to pursue its claims. We granted the State’s petition for review.
II. STANDING
The State asserts plaintiff lacks standing to challenge the enactment. Although the State did not raise the standing issue until its petition for review in this court, “contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.” (Common Cause v. Board
of Supervisors (1989) 49 Cal.3d 432, 438.) The State argues that plaintiff lacks taxpayer standing under
As explained below, we agree with the State that
we encourage the Legislature (possibly working with the Law Revision Commission) to comprehensively review both
A. Taxpayer Standing as Developed at Common Law
Beginning in the late 19th century, the common law doctrine of taxpayer standing, recognized in most jurisdictions including California, allowed taxpayers to file lawsuits to enjoin local governmental officers and entities from engaging in asserted waste or unlawful expenditure of public funds. (E.g., Winn v. Shaw (1891) 87 Cal. 631, 636 (Winn); see generally Comment, Taxpayers’ Suits: A Survey and Summary (1960) 69 Yale L.J. 895, 898–890 (hereinafter Comment, Taxpayers’ Suits: A Survey); Jaffe, Standing to Secure Judicial Review: Public Actions (1961) 74 Harv. L.Rev. 1265, 1269–1282.)
In Winn, a county board of supervisors was poised to purchase land without first publishing a notification of its intent to do so, as required by law. (Winn, supra, 87 Cal. at p. 636.) The plaintiff, a local taxpayer, successfully sued to enjoin the sale as illegal. On appeal to this court, we upheld both the plaintiff’s standing to sue and the injunction. (Ibid.) Addressing standing, we wrote: “[A] tax-payer of a county has such an interest in the proper application of funds belonging to the county that he may maintain an action
(See, e.g., Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 166.)
demands which have no validity against the county. The weight of authority seems to be in harmony with this view.” (Ibid.)9
B. Enactment of Statutory Taxpayer Standing: Former Section 526a
The Legislature adopted
plaintiff filed the present litigation. (See Stats. 1967, ch. 706, § 1, p. 2080.)
As the language reflects, the statutory taxpayer standing provision differed from the common law taxpayer standing doctrine in three ways. The former statute’s text focused on suits to restrain and prevent asserted illegal expenditure of public funds against local governmental officers and entities — and was silent concerning standing to sue state governmental officers and entities. Second, it limited such standing by a natural person to one who was a “citizen resident” of the defendant jurisdiction. (Former
After the enactment of former
claims concerning police abuse of authority (Wirin v. Horrall (1948) 85 Cal.App.2d 497, 504–505); to contest transfer of a city’s funds (Trickey v. City of Long Beach (1951) 101 Cal.App.2d 871, 880–881); to challenge, as unconstitutional, implementation of a state statute (Lundberg v. County of Alameda (1956) 46 Cal.2d 644, 647); and to enjoin police surveillance by concealed microphones (Wirin v. Parker (1957) 48 Cal.2d 890, 891 (Parker)).
Meanwhile, Court of Appeal decisions continued delineating the common law taxpayer standing doctrine, holding expressly that the common law permits suits against state, and not only against local, governmental officers and entities. In Ahlgren v. Carr (1962) 209 Cal.App.2d 248 (Ahlgren), a taxpayer plaintiff asserted common law standing to enjoin actions of state officers — the director of finance and state controller — from making allegedly illegal expenditures concerning textbooks for schools. (Id. at p. 250.) Addressing that issue for the first time, and without discussing or citing former
Similarly, in California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390, 395 (Williams), the Court of Appeal found that the plaintiffs had common law standing to sue a state officer and pursue their claim that a contract concerning the Medi-Cal program violated the civil service provision of the California Constitution. Citing Ahlgren — and without mentioning former
In the wake of these appellate decisions concluding that the common law taxpayer standing doctrine permits suits against state officers, in a series of four cases starting with Blair v. Pitchess (1971) 5 Cal.3d 258 (Blair), we construed former section 526a to allow suit to restrain and prevent asserted illegal expenditure of public funds against not only local officers, but also against state officers.
In Blair, supra, 5 Cal.3d 258, we considered a constitutional challenge to the “claim and delivery process,” under which a “ ‘plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer’ require the sheriff, constable or marshal of a county to take the property from the defendant.” (Id. at pp. 266, 265.) The plaintiffs were residents and taxpayers of the County of Los Angeles who had paid a real property tax to the county. (Id. at p. 265.) They sued the county, the sheriff, and other county officers (but not the state or its officers), seeking “an injunction restraining defendants from executing the provisions of the claim and delivery law,” which assertedly violated provisions of the federal and state Constitutions. (Ibid.) The trial court granted the plaintiffs’ motion for summary judgment, and enjoined the defendants and their employees as the plaintiffs requested. (Id. at p. 267.)
The defendants argued on appeal that the “plaintiffs had no standing to maintain the action and that consequently the trial court’s judgment was advisory in nature.” (Blair, supra, 5 Cal.3d at p. 267.) We responded: “[P]laintiffs bring their suit under section 526a, which authorizes actions by a resident taxpayer against officers of a county, town, city, or city and
county to obtain an injunction restraining and preventing the illegal expenditure of public funds. The primary purpose of this statute, originally enacted in 1909, is to ‘enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement.’ ” (Id. at pp. 267–268, fn. omitted, citing Comment, Taxpayers’ Suits: A Survey, supra, 69 Yale L.J. at p. 904.)
Our analysis in Blair then relied on cases cited earlier in this opinion, including Parker, supra, 48 Cal.2d 890, and Mines, supra, 201 Cal. 273, to support the proposition that “California courts have consistently construed section 526a liberally to achieve this remedial purpose.” (Blair, supra, 5 Cal.3d at p. 268.) Next, we quoted our statement in Crowe, supra, 184 Cal. at page 152: “ ‘In this state we have been very liberal in the application of the rule permitting taxpayers to bring a suit to prevent the illegal conduct of city officials . . . .’ ” (Blair, at p. 268.) Blair’s next paragraph elaborated, in
To the extent the italicized passage has been understood as an authoritative interpretation of former
such suits. Neither decision can be construed as contemplating, let alone applying, former
After reciting this dictum (as noted, the defendants in Blair, supra were not state officers), we reasonably held that former
Perhaps our couched phrasing of the dictum in Blair, supra, 5 Cal.3d at page 268 (“it has been held that“) was intended to implicitly refer to, without mentioning, the common law taxpayer standing doctrine, and to avoid the implication that we were speaking of cases interpreting former
Our first step toward confirming such an expansive reading of the former statute came just two months later, in Serrano v. Priest (1971) 5 Cal.3d 584 (Serrano), a suit in which the local / state distinction mattered because the action named as defendants both county officers and a state treasurer. In our decision finding a constitutional violation concerning the public-school financing system, we addressed as a threshold matter the plaintiffs’ standing to sue under former
A few years later, we further affirmed this reading of Blair‘s dictum in Adams v. Department of Motor Vehicles (1974) 11 Cal.3d 146. Adams was a taxpayer suit against a state entity, the Department of Motor Vehicles, and related state officers, challenging the constitutionality of the “garageman‘s labor and materials lien” statutes, which permitted involuntary sale and transfer of a vehicle without affording the owner a hearing. (Id. at pp. 149–150.) Briefly addressing standing, we held the suit proper under former
Finally, in Stanson v. Mott (1976) 17 Cal.3d 206, we addressed a “taxpayer suit” (id. at p. 209) challenging expenditures by the defendant, the director of the state‘s Department of Parks and Recreation, asserting he illegally expended public funds to promote passage of a bond issue that was presented to the statewide voters. (Ibid.) On the merits, we held for the plaintiff. (Id. at pp. 213–223.) At the conclusion of that discussion, we briefly addressed the plaintiff‘s standing and entitlement to declaratory or injunctive relief. (Id. at pp. 222–223.) In this regard we cited, simply, both Ahlgren, supra, 209 Cal.App.2d at pages 252–254 (which, as observed earlier, addressed common law taxpayer standing), and former
Indeed, that is how our Courts of Appeal have understood Blair and its progeny, in decisions allowing suits under the former statute. (See, e.g., Duskin v. San Francisco Redevelopment Agency (1973) 31 Cal.App.3d 769, 773 [observing that pursuant to Blair, “state officials too may be sued under” the statute]; Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 30 (Los Altos); Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 232 [finding standing under the statute to sue a state official for unlawfully disseminating criminal offender record information]; Vasquez v. State of California (2003) 105 Cal.App.4th 849, 854 (Vasquez) [“[A]lthough by its terms the statute applies to local governments, it has been judicially extended to all state and local agencies and officials“]; Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308 [the statute allows “[a] taxpayer [to] sue to enjoin wasteful expenditures by state agencies as well as local governmental bodies“]; see also Grosz v. California Dept. of Tax and Fee Admin. (2023) 87 Cal.App.5th 428, 439 [following Vasquez].) Meanwhile, other appellate courts, relying on a combination of the former statute, our decision in Blair, and the common law decision in Ahlgren, found standing to sue the state to restrain and prevent asserted illegal expenditure of public funds. (See, e.g., Farley v. Cory (1978) 78 Cal.App.3d 583, 589 & fn. 5; California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1281.)
To this day, courts have continued to apply an amalgam of both the common law and
E. The Legislature‘s 2018 Amendment of Section 526a To Provide That the Statute Authorizes Suits Against Those Acting on Behalf of a “Local Agency”
The Legislature amended
The Legislature did exactly that. (Stats. 2018, ch. 319, § 1.) Amended
F. Amended Section 526a, by Its Terms, Does Not Afford Standing to Sue the State or Its Officers and Entities
Our decisions enlarging former
We find these critiques of our judicial interpretation of the
We discern no textual support for our initial judicial expansion of former
G. We Exercise Our Discretion To Address the Court of Appeal‘s Analysis and Judgment
Based on its contention that plaintiff lacks standing, the State urges us to vacate the Court of Appeal‘s decision, without reviewing the merits of the court‘s conclusion that the provision is facially unconstitutional.
In light of these extraordinary circumstances, and mindful of our own prior decisions interpreting the predecessor statute to afford standing to sue the state, and also in view of the fact that the parties have thoroughly litigated the merits in the courts below and in their briefs in this court, we exercise this court‘s discretion to proceed to the merits as addressed in the Court of Appeal‘s judgment. (
Having so concluded, we do not address whether plaintiff has “public interest” standing (see ante, fn. 8), or whether the common law taxpayer standing doctrine continues to exist, and whether, if it does, such standing is satisfied in this case. We instead defer such issues for consideration in any potential future litigation. In the meantime, the Legislature, perhaps working with the Law Revision Commission, is encouraged to survey the field described in the cases cited earlier, and consider whether it is appropriate to limit or eliminate the common law doctrine, or perhaps merge a version of it into a further revised version of
Plaintiff challenges the pronouns provision on its face under the
A. Presumption of Constitutionality — and Why Facial Challenges Are Disfavored
As the Court of Appeal recognized, and as our prior cases have held, there is a strong presumption that an act of the Legislature is constitutional. (Taking Offense, supra, 66 Cal.App.5th at p. 705.) “‘“[M]ere doubt by the judicial branch . . . as to the validity of a statute will not afford a sufficient reason for a judicial declaration of its invalidity[. Instead,] . . . statutes must be upheld as constitutional unless their invalidity clearly, positively, and unmistakably appears.” [Citation.] These principles govern a challenge to the facial validity of a statute.‘” (Ibid.)
A corollary principle is relevant here: As a general matter, “[f]acial challenges are disfavored for several reasons.” (Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 450.) They “often rest on speculation,” and hence “raise the risk of ‘premature interpretation of statutes on the basis of factually barebones records.‘” (Ibid.) “Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither ‘“anticipate a question of constitutional law in advance of the necessity of deciding it“’ nor ‘“formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.“‘” (Ibid.) “Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that ‘“[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.“‘” (Id. at p. 451; accord, Moody v. Netchoice, LLC (2024) 603 U.S. 707, 723 [free speech challenge].)
B. Standard for Assessing Facial Challenges
“We evaluate the merits of a facial challenge by considering ‘only the text of the measure itself, not its application to the particular circumstances of an individual.‘” (Zuckerman v. State Bd. of Chiropractic Examiners (2002) 29 Cal.4th 32, 38–39.) “A litigant mounting a facial challenge bears a formidable burden to demonstrate . . . invalidity in ‘at least “‘“the generality“‘” [citation] or “vast majority“’ of cases.” ( People v. Martinez (2023) 15 Cal.5th 326, 352 (Martinez).) “This is an ‘exacting’ standard.” (Ibid.) As explained below, plaintiff has not carried this heavy burden.
C. The High Court‘s Decision in Reed
In reaching its contrary conclusion, the Court of Appeal below relied heavily on Reed v. Town of Gilbert (2015) 576 U.S. 155 (Reed), in which the high court considered a municipality‘s regulation that treated in different fashion various categories of outdoor signs based on the type of information each sign conveyed. The law subjected temporary signs directing the public to a meeting to more stringent restrictions than other signed messages. (Id. at pp. 159–161.) A religious group that lacked a permanent location, and wished to post signs showing its Sunday services and locations, challenged the regulation as a content-based abridgment of
The high court reversed. The court found the town‘s sign law to be “content based on its face.” (Reed, supra, 576 U.S. at p. 164.) The court held that such laws, which “target speech based on its communicative content,” “are presumptively unconstitutional and may be justified only” if they survive strict scrutiny analysis, that is, “if the government proves that they are narrowly tailored to serve compelling state interests.” (Id. at p. 163; see Martinez, supra, 15 Cal.5th at p. 342 [noting that under Reed, “[a]s a general rule,” the high court has held that noncommercial content-based restrictions “‘are presumptively unconstitutional‘“].)
The Court of Appeal below concluded that Reed required it to apply strict scrutiny in this case. (Taking Offense, supra, 66 Cal.App.5th at pp. 712–716Reed, supra, 576 U.S. at page 163, a standard of review “less exacting” than strict scrutiny — a form of intermediate scrutiny “‘analogous to . . . time, place and manner‘” analysis — is appropriate when, as here, “a statute shields an ‘unwilling and captive audience’ from verbal discrimination.”
Somewhat similarly, amici curiae California Professors of Freedom of Expression and Equality Law also argue that strict scrutiny is inapplicable here. They observe that Reed concerned speech occurring in a traditional public forum, where information implicating the marketplace of ideas is most strongly protected. Distinguishing such a setting from the present one, the professors urge that ”Reed‘s holding does not extend tо all contexts in which words are voiced — to courts and care facilities no less than streets and
Finally, and relatedly, amici curiae Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, ACLU of Southern California, et al. urge us to view the challenged statute not as a content-based regulation of protected speech, but instead as a regulation of discriminatory “conduct, which triggers no special constitutional scrutiny.” (Italics added.) At oral argument, the State endorsed a version of this approach.
As explained post, part III.D., we conclude that an analysis akin to that last described — one that evaluates restrictions on discriminatory conduct — is appropriate in this setting, and the challenged pronouns provision should be upheld under that approach. Finally, as explained post, part III.G., we conclude that the circumstance that enforcement may, in some rare and extreme circumstances, possibly trigger potential criminal penalties, does not call for invalidation of the challenged pronouns provision in this facial challenge.
D. Section 1439.51, Subdivision (a)(5) Constitutionally Prohibits Discriminatory Conduct in Long-term Care Facilities
As observed earlier, the Court of Appeal agreed with plaintiff that pursuant to the high court‘s decision in Reed, supra, 576 U.S. 155,
The challenged statute addresses and operates in a narrow setting. It properly regulates discriminatory conduct aimed at vulnerable seniors who typically constitute a captive audience, residing in long-term care facilities that have become, in effect, their homes. The provision regulates the professional conduct of long-term care staff whose job is to provide and support medical treatment and intimate personal care — and seeks to promote an environment conducive to such care. It is carefully calibrated to achieve those ends, and does not preclude facility staff from expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering a resident — and even then, the prohibition is limited to willful, repeated, knowing acts done because of a protected characteristic.
1. Relevant case law
a. The high court‘s decision in R. A. V. — establishing that laws regulating conduct may constitutionally prohibit discriminatory and incidental speech
In R. A. V. v. St. Paul (1992) 505 U.S. 377 (R. A. V.), the United States Supreme Court considered a
The high court explained that the
b. Our plurality decision in Aguilar — viewing anti-discrimination laws as permissible regulations of conduct, rather than protected speech subject to First Amendment scrutiny, and upholding an injunction barring the use of racial epithets in a workplace
In Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 (Aguilar), a plurality of this court applied R. A. V. in rejecting a
The plurality opinion concluded that “the pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the
The plurality in Aguilar rejected the argument that the injunction constituted an impermissible prior restraint on speech, reasoning that “once a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited ‘prior restraint’ of speech.” (Aguilar, supra, 21 Cal.4th at p. 140 (plur. opn. of George, C. J.).) Because the injunction was “based upon a continuing course of repetitive speech that has been judicially determined to violate the FEHA,” the plurality held that prohibiting the defendant and its manager “from continuing to violate the FEHA does not violate their
Finally, in addressing a claim that the injunction was overbroad because it could apply “even outside the hearing of” the plaintiffs, the plurality again analogized to Title VII‘s hostile work environment framework. (Aguilar, supra, 21 Cal.4th at p. 145 (plur. opn. of George, C. J.).) Defendants had argued that “the use of racial epithets outside the hearing of Hispanic employees does not contribute to a hostile work environment if the audience does not find the speech unwelcome and the subjects of the racial invective are unaware they are being maligned.” (Ibid.) The plurality responded that although the incomplete record prevented an outright ruling, it “is possible that the use of racial epithets even outside the hearing of plaintiffs would contribute to an atmosphere of racial hostility that would perpetuate the hostile work environment.” (Id. at p. 146 (plur. opn.).)
The concurring opinion, unlike the plurality, subjected the injunction to
2. Strict scrutiny analysis does not apply to regulation of conduct in the anti-discrimination setting
As shown above, anti-discrimination laws such as Title VII and the FEHA (and related public accommodation laws) permissibly regulate discriminatory conduct — and have not generally been subject to First Amendment scrutiny. For example, a prohibition on employment discrimination “will require an employer to take down a sign reading ‘White Applicants Only,‘” but this “hardly means that the law should be analyzed as one regulating the employer‘s speech rather than conduct.” (Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) 547 U.S. 47, 62 (Rumsfeld).) That is so because ” ‘it has never been deemed an abridgment of freedom of speech . . . to make a course of conduct illegal
In other words, the high court has clarified, “acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” (R. A. V., supra, 505 U.S. at p. 390.)
Thus, like the plurality in Aguilar, supra, 21 Cal.4th at pages 133–137, we reject the assertion that a law such as the one we consider here, aimed at discriminatory conduct, is subject to First Amendment scrutiny as an abridgment of freedom of speech.
By contrast, the Court of Appeal below assumed that the challenged statute triggered First Amendment analysis — and indeed, strict scrutiny — because the prohibited conduct involves verbal communication. We disagree with the Court of Appeal‘s view. We acknowledge that the Legislature‘s clarification of discriminatory conduct prohibited by state anti-discrimination laws through enactment of the statute implicates spoken or written words by proscribing certain “[w]illful[] and repeated[]” acts of misgendering done on the basis of a legally protected characteristic. (
As established earlier, under the high court‘s precedents, the regulation of discriminatory conduct does not trigger First Amendment scrutiny, even when such conduct is carried out through spoken or written expression. (R. A. V., supra, 505 U.S. at p. 389; Meritor, supra, 477 U.S. at p. 67.) These authorities demonstrate that in appropriate circumstances it is constitutionally permissible to proscribe acts that contribute to the creation or perpetuation of a hostile workplace environment, even when those acts involve spoken or written communication.
More specifically, for the reasons outlined below, we conclude that
“The working environment must be evaluated in light of the totality of the circumstances.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, citing Harris, supra, 510 U.S. at p. 23.) As the high court has explained, “[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” (Oncale, supra, 523 U.S. at pp. 81–82.) Verbal or written communication alone can create a hostile workplace environment under
The subjective element of the hostile environment framework establishes that a plaintiff has been harmed by harassment. Although prior cases upholding hostile environment claims in more extreme contexts are instructive, “especially egregious examples of harassment” “do not mark the boundary of what is actionable.” (Harris, supra, 510 U.S. at p. 22Ibid.) In Harris, the court expressly rejected the contention that a plaintiff must demonstrate that challenged conduct ” ‘seriously affect[ed] [a resident‘s] psychological well-being’ ” or “cause[d] a tangible psychological injury,” as some circuit courts had previously held. (Id. at pp. 20 & 21, italics added.)20 Rather than mandate a
threshold level of harm, the subjective element requires that the victim personally “perceive the environment to be abusive.” (Harris, at p. 21.)
As in the employment context, federal and state fair housing laws also employ a hostile environment framework to proscribe discriminatory conduct that implicates speech. (
Long-term care facilities often function as a home to their residents,21 and the home has long been recognized as a context deserving of special protection. (Rowan v. Post Office Dept. (1970) 397 U.S. 728, 738 [observing that although “we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be
captives everywhere” and concluding “[t]he asserted right of a mailer . . . stops at the outer boundary of every person‘s domain“]; FCC v. Pacifica Foundation (1978) 438 U.S. 726, 748–749 [upholding an administrative condemnation by the Federal Communications Commission against a radio station for broadcasting an “indecent” monologue during hours when young children might be listening at home]; Frisby v. Schultz (1988) 487 U.S. 474, 487 [upholding an ordinance prohibiting picketing in front of an individual‘s residence on a public street].)
4. Health and Safety Code section 1439.51, subdivision (a)(5) lawfully prohibits willful and repeated misgendering that creates a hostile environment in the long-term care setting
We conclude that the Legislature, in enacting
a. The objective element: The statute proscribes misgendering that is sufficiently severe or pervasive to create an objectively hostile environment
Concerning the first component, it seems plain that
As observed ante, part I.A., the Legislature enacted
Moreover, as also observed ante, part I.A., the Legislature cited a national study finding that nearly half of respondents witnessed or experienced a variety of mistreatment directed at LGBT seniors in long-term care facilities, including refusal of admission; abrupt discharge; verbal or physical harassment by staff, refusal to accept medical power of attorney from a resident‘s spouse or partner, discriminatory restrictions on visitation — as well as refusal to refer to a transgender resident by that person‘s “preferred pronoun” or chosen name. The cited study indicated that a majority of respondents believed this conduct in the long-term residential care context could “rise to the level of abuse or neglect.” (Stats. 2017, ch. 483, § 1, subd. (c).)
The legislative history of
b. The subjective element: The statute proscribes conduct that the Legislature has determined would be perceived to be harassing or abusive
Scholarly research — which can properly be considered in the context of a facial challenge such as this — underscores that intentional and repeated misgendering often will exceed the level of subjective harm that would be required to support a hostile workplace or hostile housing environment claim. As described in various publications submitted by amici curiae, many LGBT seniors report experiencing mistreatment and discrimination, such as misgendering, in health care settings — including by staff in long-term residential care facilities.22 As the California Assisted Living Association articulates, in the health care setting, when an employee tasked with caring for a resident refuses to use that resident‘s name or pronouns, “it communicates to residents that they do not belong, that their dignity is of no value, and that they are individuals who are undeserving of help.” Indeed, and apparently for corresponding reasons, current federal regulations governing long-term care facilities require facility staff to treat residents with “respect and dignity” and “care for each resident in a manner and in an environment that promotes maintenance or enhancement of . . .
quality of life”23 — and, significantly, related guidelines specify that “[s]taff should address residents with the name or pronoun of the resident‘s choice.”24 As discussed above, in enacting the
Relatedly, amici curiae Scholars in Social Work, Gerontology, and Social Science explain, consistently with other social science research (Russell et al., Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth (2018) 63 J. of Adolescent Health 503, 505; Lelutiu-Weinberger et al., The Roles of Gender Affirmation and Discrimination in the Resilience of Transgender Individuals in the U.S. (2020) 46 Behavioral Medicine 175, 182), misgendering “against transgender persons,
LGBT Long-Term Care Residents’ Bill of Rights, the Legislature found that the discrimination, including in the form of misgendering, that LGBT seniors experience in long-term care facilities led them to avoid accessing care on which their health, safety, and security depended. (Stats. 2017, ch. 483, § 1.)
Without attempting to delineate the application of the statute in all possible scenarios in response to this facial challenge, it is apparent that
On the other end of the spectrum is plaintiff‘s hypothetical scenario in which no resident has heard or seen willful and repeated misgendering of a resident — and furthermore has no awareness of any such conduct — and hence no resident experiences harm. Without more, the possibility that the state would attempt to establish a violation of the statute in that situation does not render the prohibition facially invalid.
c. Summary: The limited scope of Health and Safety Code section 1439.51, subdivision (a)(5)
Contrary to plaintiff‘s broad contentions, we conclude that nothing in the language or legislative history of
The United States Supreme Court has applied First Amendment scrutiny to public accommodations and anti-discrimination statutes in certain circumstances that are distinguishable from the unique long-term care setting at issue here.
In the commercial context, the high court held that artists cannot be compelled to create ” ‘pure speech’ ” that conveys what they represent to reflect their own personal message. (303 Creative LLC v. Elenis (2023) 600 U.S. 570, 583 (303 Creative).) In that matter the court addressed a plaintiff who planned to design customizable wedding internet pages. The court analogized the website to ” ‘an uninhibited marketplace of ideas’ ” (id. at p. 585) and its holding “flow[ed] directly from the parties’ stipulations,” including that the plaintiff‘s “websites promise to contain ‘images, words, symbols, and other modes of expression’ ” and that every website prepared “will be [the plaintiff‘s] ‘original, customized’ creation” designed to ” ‘celebrate and promote the couple‘s wedding and unique love story’ and to ‘celebrat[e] and promot[e]’ what [the plaintiff] understands to be a true marriage.” (Id. at p. 587.)
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557 (Hurley), the high court found unconstitutional the application of a public accommodations law that would have required private parade organizers to allow an LGBT group bearing a banner to participate in the organizers’ parade. The court observed that a parade is a “medium[] of expression” (id. at p. 569) composed of “marchers who are making some sort of collective point, not just to each other but to bystanders along the way.” (Id. at p. 568.) Because the speech of each unit of the parade “distilled” the “overall message” conveyed by the private organizers (id. at p. 577), the court in Hurley reasoned that the contested application would improperly render “speech itself to be the public accommodation.” (Id. at p. 573.) Likewise, in the associational context, the high court in Boy Scouts of America v. Dale (2000) 530 U.S. 640 (Boy Scouts) considered the “forced inclusion” of a gay rights activist as an assistant scoutmaster of the Boy Scouts. (Id. at p. 648.) The decision invalidating this application on the
By contrast, the present case does not involve any analogous creative product or expressive association as in 303 Creative and Hurley. As previously described,
We view such high court decisions as reflecting context-specific applications of First Amendment principles. Such decisions are not inconsistent with the high court‘s line of authority repeatedly declining to subject discriminatory conduct, including the creation of hostile environments under
F. The Recent Decision in Free Speech Coalition
After oral argument in this matter, the United States Supreme Court filеd its opinion in Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461 (Free Speech Coalition). We vacated submission and directed the parties to address the effect, if any, of Free Speech Coalition on the issues here. Having considered those submissions (and corresponding briefing by amicus curiae on behalf of plaintiff), we conclude that Free Speech Coalition alters neither our above-articulated analysis nor our conclusion in this matter.
In Free Speech Coalition, the high court addressed a state law requiring certain commercial websites publishing sexually explicit content to verify that
In the present case, the challenged provision,
express their opposition to LGBT rights.” Accordingly, the high court‘s holding in Free Speech Coalition does not bear on the present matter.
Moreover, Free Speech Coalition neither explicitly, nor even implicitly, casts doubt on our earlier analysis and conclusion that state and federal anti-discrimination laws — including the
Even if we were to assume, solely for purposes of argument, that Free Speech Coalition requires that we apply intermediate scrutiny, the challenged provision would easily survive such review.
Like the statute at issue in Free Speech Coalition, which the court found imposed “only [an] incidental” burden on adults’ First Amendment rights (Free Speech Coalition, supra, 606 U.S. at p. 483), any burden on expression imposed by
The statute‘s prohibition on repeated and willful misgendering in the narrow context at issue here “is plainly a legitimate legislative choice.” (Free Speech Coalition, supra, 606 U.S. at p. 496.) As discussed earlier, the Legislature could reasonably determine that barring willful and repeated misgendering in the long-term care setting will facilitate residents’ medical and related intimate personal care by fostering an environment that is conducive to, and does not interfere with or undermine, such care. The challenged provision furthers this important state interest.
The statute is also sufficiently tailored to address the state‘s important interest, which ” ‘would be achieved less effectively absent the regulation.’ ”
G. The Possibility of Criminal Penalties for Particularly Egregious Violations of the Challenged Statute Does Not Render It Facially Invalid
As plaintiff observes, violations of the LGBT Long-Term Care Residents’ Bill of Rights, including the pronouns provision, are subject not only to pre-existing and long-established civil and administrative proceedings and penalties, but also to the possibility of pre-existing and long-established criminal prosecution and corresponding penalties consisting of fines up to $2,500 and up to 180 days, or even one year, in county jail. (See
Plaintiff quotes the high court‘s decision in Ashcroft v. American Civil Liberties Union (2004) 542 U.S. 656, 660: “Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.” Plaintiff asserts broadly that “criminalizing and compelling speech content” via
Plaintiff misapprehends the prospect of criminal penalties in this particular setting and fails to recognize substantial constraints imposed by the Legislature concerning these penalties. Misdemeanor-level criminal prosecution and ensuing punishment is far from required, or even generally contemplated as an appropriate course and penalty under the scheme. In this respect, it is useful to review the legislative history, both to understand (1) how and why criminal penalties became available as a means of addressing violations of the Health and Safety Code‘s various provisions concerning long-term care facilities, and (2) how and under what circumstances the Legislature contemplates that such penalties would be appropriate in this particular setting.
As noted, the Legislature enacted
In addition to these civil and administrative penalties, other provisions within the Health and Safety Code, first adopted more than 50 years ago, subject some violations relating to long-term care facilities to possible criminal prosecution, with resulting misdemeanor fines and / or potential imprisonment in the county jail. Beginning in 1973,
The Legislature responded to the Little Hoover Commission report in 1985 by, among other things, further amending
and knows the relevant circumstances connected therewith.” (
Accordingly, by virtue of
Plaintiff‘s briefing does not explicitly contest the propriety of a possible criminal prosecution against a long-term care entity, which can of course be subjected only to criminal fines, and cannot be imprisoned. It is not apparent that criminal prosecutions would inevitably subject such entities to penalties more severe than those available through civil and administrative proceedings. Moreover, as the Court of Appeal below observed, criminal prosecutions, compared with civil or administrative proceedings, afford defendants greater procedural safeguards. (Taking Offense, supra, 66 Cal.App.5th at p. 720.)
In any event, plaintiff focuses on the possible criminal prosecution of an individual — a hypothetical employee of a long-term care facility who, for personal reasons, willfully and repeatedly refuses to comply with
We assume that willful and repeated misgendering that does not egregiously affect a resident‘s medical treatment or intimate personal care would, as a general matter, be addressed under civil and administrative law by imposing fines and related penalties. Yet we cannot foreclose the possibility that violations of the challenged pronouns provision might, in some circumstances, bear a direct relationship to the health of a resident, and indeed contribute to serious physical harm or even death, and hence constitute conduct so egregious as to be appropriately charged as a crime, and ultimately trigger a court‘s duty to undertake the highly fact-based sentencing inquiry that the Legislature has required under
Accordingly, we conclude plaintiff has failed to demonstrate that the remote possibility of prosecution and enforcement by way of criminal penalties for particularly egregious violations of
Plaintiff‘s facial challenge to
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
GROBAN, J.
EVANS, J.
JENKINS, J.*
* Retired Associate Justice of the Supreme Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
TAKING OFFENSE v. STATE OF CALIFORNIA
S270535
Concurring Opinion by Chief Justice Guerrero
As observed ante, majority opinion, part III.D., we conclude that
I. STRICT SCRUTINY ANALYSIS
As observed ante, majority opinion, part III.C., in Reed the high court addressed a municipality‘s regulation that treated disparately various categories of outdoor signage based on the type of information each sign conveyed. The law subjected temporary signs directing the public to a meeting to more stringent restrictions than were applied to signs conveying different messages. (Reed, supra, 576 U.S. at pp. 159–161.) A religious group that lacked a permanent location, and sought to post signs advertising its Sunday services and locations, challenged the regulation as a content-based abridgment of First Amendment rights. (Reed, at p. 162.) The appellate court rejected the challenge and found the law content neutral applying intermediate scrutiny. (Id. at pp. 162–163.) The high court reversed, finding the town‘s law to be “content based on its face.” (Id. at p. 164.) The court held that such laws,
When applying Reed‘s framework in the setting before us, a court must first ask: Is the challenged pronouns provision content based? Although the trial court found the provision to be content neutral, the Court of Appeal held otherwise. It found that under Reed the provision must be seen as a content based regulation in that it ” ‘target[s] speech based on its communicative content’ and ‘applies to particular speech because of the topic discussed or the idea or message expressed.’ ” (Taking Offense v. State of California (2021) 66 Cal.App.5th 696, 709 (Taking Offense), quoting Reed, supra, 576 U.S. at p. 163.) Significantly, the State of California‘s (State) briefs in this court do not contest this assessment, and instead appear to agree with it. Indeed, the State asserts: “[I]t would be impossible as a practical matter for the government to craft a truly content-neutral law shielding LGBT long-term care residents from verbal discrimination.” In this posture, I would accept, for sake of argument and further analysis only, the appellate court‘s determination that the challenged pronouns provision is content based.
Based on this threshold position, I review the challenged pronouns provision under strict scrutiny. In approaching this task, I bear in mind key admonitions concerning that test. In Adarand Constructors v. Pena (1995) 515 U.S. 200, the high court remanded with directions to assess a program designed to provide highway contracts to disadvantaged business enterprises under strict scrutiny. The court dispelled the oft-repeated notion that the test is ” ‘strict in theory, but fatal in fact.’ ” (Id. at p. 237.) Thereafter, in Grutter v. Bollinger (2003) 539 U.S. 306 (Grutter), the court upheld a law school‘s affirmative action policy. Explaining that result, the court reiterated that when applying strict scrutiny, “[c]ontext matters.” (Id. at p. 327, italics added; accord, Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in Federal Courts (2006) 59 Vand. L.Rev. 793, 795 [study of 447 cases applying strict scrutiny revealed that in application the test is a “context-sensitive tool” under which 30 percent of challenged laws survive].)
As explained post, part I.A., I agree with the Court of Appeal below that the provision is supported by a weighty state interest — “eliminating discrimination on the basis of sex.” (Taking Offense, supra, 66 Cal.App.5th at p. 717, and cases cited.) But I conclude that is an unduly general characterization of the state‘s compelling interest in this setting. The compelling state interest
Moreover, in assessing the strength of such interests in this narrow setting, high court decisions under the “captive audience” doctrine alluded to ante, majority opinion, part III.D.3., illuminate key considerations concerning the relevant “context” (Grutter, supra, 539 U.S. at p. 327). These decisions therefore inform an assessment of the weight that should be attributed to the state‘s interest, and support a conclusion that the challenged pronouns provision servеs a compelling state interest.
Next, as explained post, parts I.B., and I.C., I disagree with the Court of Appeal‘s understanding concerning the scope of the challenged pronouns provision, and with the appellate court‘s conclusion that the statute must be invalidated in this facial challenge because it is assertedly insufficiently narrowly tailored, or overbroad (Taking Offense, supra, 66 Cal.App.5th at pp. 720–721).
Finally, as explained post, part I.D., I disagree with plaintiff‘s assertions that the challenged provision fails the “least restrictive alternative” test mandated by Ashcroft v. American Civil Liberties Union (2004) 542 U.S. 656, 665 (Ashcroft). Relatedly, as reflected ante, majority opinion part III.G., we also reject plaintiff‘s corresponding suggestion that the prospect of enforcement by criminal penalties in especially egregious circumstances renders the provision facially invalid.
A. The Statute‘s Pronouns Provision Supports a Compelling State Interest
The high court has “never given a general account of what makes some ends that government may pursue compelling and others not.” (Miller, What is a Compelling Governmental Interest? (2018) 21 J. of Markets & Morality 71, 72; see also id. at pp. 73–75 [acknowledging the difficulty of defining a compelling state interest]; Fallon, Strict Judicial Scrutiny (2007) 54 UCLA L.Rev. 1267, 1336 (Strict Judicial Scrutiny) [“The Supreme Court has never squarely confronted, much less solved, the conundrum of the level of
Plaintiff views the challenged pronouns provision as serving no compelling interest, but instead “simply [reflecting the state‘s] preference for the transgender ideology that gender is a social construct divorced from biological sex,” in contrast to plaintiff‘s own “gender essentialist perspective that biological sex and psychological gender are closely related and virtually always identical.” Plaintiff argues that the provision “compels state-sponsored speech” and requires “people to proclaim words that promote only one side of a controversial moral and cultural issue of public concern,” contrary to the First Amendment‘s requirement that ” ‘the government must remain neutral in the marketplace of ideas.’ ” (Quoting FCC v. Pacifica Foundation (1978) 438 U.S. 726, 745–746, italics added (Pacifica).)
Plaintiff analogizes to various decisions addressing “compelled speech.” In Meriwether v. Hartop (6th Cir. 2021) 992 F.3d 492 (Meriwether), the court found that a public university professor who believes sex is immutable has a First Amendment right to express that opinion in the classroom by violating a school mandate that teachers refer to students and others by their “preferred pronouns.” (Meriwether, at p. 500; id. at pp. 503–505.) Quoting that opinion (id. at p. 508), plaintiff asserts: ” ‘Pronouns can and do convey a powerful message implicating a sensitive topic of public concern.’ ” Likewise, plaintiff relies on Vlaming v. West Point School Bd. (Va. 2023) 895 S.E.2d 705. In that decision, the state supreme court held that a public high school teacher who, in class, referred to a transgender student by the pupil‘s chosen name, but was terminated because he refused to use the pupil‘s chosen pronouns, stated viable state law claims under the state constitution‘s religious liberty protections, free speech, and due process clauses, and a corresponding religious freedom statute. Relatedly, plaintiff relies on the high court‘s decision in 303 Creative LLC v. Elenis (2023) 600 U.S. 570 (303 Creative), which invalidated a state‘s public accommodation law as applied to a website designer who intended to refuse to create custom wedding pages for gay couples. (Id. at pp. 602–603 [the state may not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance“].)
In this regard plaintiff further cites high court decisions protecting offensive speech. (Matal v. Tam (2017) 582 U.S. 218, 223
Below in part I.A.1., I explain how the statute furthers a compelling and specific state interest. In part I.A.2., I return to the United States Supreme Court‘s captive audience case law, and explain how that First Amendment doctrine informs an assessment of the strength attributable to the state‘s interest in this case.
1. The statute advances the state‘s compelling interest in protecting long-term care residents’ right to be free from discrimination that targets a legally protected characteristic by those whose job is to provide and support medical treatment and intimate personal care, thereby promoting an environment conducive to such care
As observed ante, majority opinion, part I.A., the Legislature articulated in substantial detail its justifications for protecting people who need access to long-term care from willful and repeated misgendering based on a protected characteristic. As an initial matter, the Legislature clearly sought to protect long-term care residents’ dignity and right to be free from discrimination as a worthwhile end. But significantly, the history establishes that the Legislature understood that eliminating discrimination also served as a means to achieve a corresponding goal in this context. That is, the Legislature sought to root out discrimination as necessary to address and improve the physical and mental health of long-term care residents. Specifically, the Legislature concluded that reducing discrimination through the prohibition of misgendering is critical in achieving the goal of encouraging the provision of long-term medical and residential care in an environment that is conducive to, and that does not interfere with or undermine, such care. (See Stats. 2017, ch. 483, § 1, subds. (a)–(e).)
LGBT seniors, especially those who are transgender, disproportionately need specialized medical, mental health, and related personal care, and yet transgender seniors are less likely than cisgender seniors to have children who are available to assist them.1 Many such seniors have reported fearing mistreatment and discrimination by staff in health care settings.2 Correspondingly, as observed ante, majority opinion, part III.D.3., such seniors have reported mistreatment and discrimination by staff in health care settings, including in long-term residential care facilities.3 Transgender seniors often have experienced staff who refuse to use their chosen names and
pronouns.4 As also noted ante, majority opinion, part III.D.3., The California Assisted
As related by amici curiae Scholars in Social Work, Gerontology, and Social Science, citing relevant academic studies: “Years of discrimination and stigma can produce cumulative health consequences that negatively impact transgender older adults.6 Transgender adults who experience
discrimination have increased odds of depressive distress7 and higher rates of suicide — and these rates increase with higher exposures to discrimination.”8 And yet, the same amici curiae relate, research confirms “that the use of the affirmed names and pronouns of transgender persons is associated with fewer depressive symptoms and less suicide ideation, suicidal behavior, and psychological distress.”9 “[C]onversely,” the same
amici curiae report, “discrimination
In other words, amicus curiae California Assisted Living Association asserts, discrimination against LGBT seniors, especially against those who are transgender, constitutes “a health hazard in a long-term care setting.” Amici curiae Scholars in Social Work, Gerontology, and Social Science summarize as follows: “Research and practitioner guidelines in medicine, nursing, public health, social work, psychology, and gerontology overwhelmingly confirm the clinical imperative of using affirmed names and gender pronouns of transgender older adults. . . . Requiring the use of affirmed names and gender pronouns of transgender older adults is merely consistent with this well-developed standard of care.”11 (Fns. omitted.)
I agree with the State that the reports cited in the legislative history, viewed together with the research context provided by amici curiae, illuminate the state’s specific and focused interest in regulating misgendering that occurs in the long-term care setting. Namely, the pronouns provision is designed to guard an especially vulnerable and marginalized audience against discrimination targeting a legally protected characteristic. It is also designed to do so in a very specific context — targeting such conduct committed by the staff of a long-term care facility whose job is to provide and support medical treatment and intimate personal care, and to foster an environment conducive to such
Seen in this light, even a legislature that shared plaintiff’s “gender essentialist” views could conclude that a misgendering prohibition in this specific and narrow setting is crucial to foster quality medical and related intimate personal care for residents of such long-term care facilities. In other words, the desire to promote an environment in long-term care facilities conducive to the physical and mental well-being of residents living in such facilities justifies the pronouns provision irrespective of the Legislature’s views concerning the content of any speech incidentally regulated by the pronouns provision. (Cf. R. A. V., supra, 505 U.S. at p. 389 [“Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is ‘justified without reference to the content of the . . . speech’ ”].)
2. The captive audience doctrine illuminates the long-term care context and informs assessment of the strength of the state’s interest underlying the challenged provision
Another aspect of the “context” (Grutter, supra, 539 U.S. at p. 327; 303 Creative, supra, 600 U.S. at p. 600, fn. 6) pertaining to the state’s interest identified above informs the freedom of speech inquiry. A series of high court decisions developing the captive audience doctrine under the First Amendment have upheld regulations restricting speech by protecting the interests of viewers or listeners who have no reasonable means of escape from seeing or hearing an unwelcome message that significantly intrudes upon privacy, autonomy, and corresponding medical care interests. These cases usefully
a. High court decisions concerning home and medical privacy settings
As observed ante, majority opinion, part III.D.3., high court decisions developing the captive audience doctrine have upheld regulations of speech in order to afford protection of persons in and around their homes. (Rowan v. Post Office Dept. (1970) 397 U.S. 728, 737 (Rowan) [upholding a content-based regulation permitting residents to opt out of receiving sexually themed communications by mail]; Pacifica, supra, 438 U.S. at pp. 748–749 [“in the privacy of the home . . . the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. . . . One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place”]; Frisby v. Schultz (1988) 487 U.S. 474, 487 (Frisby) [observing that “[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech” and “[t]he target of the focused picketing banned by the . . . ordinance is just such a ‘captive’ ” because “[t]he resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech”].)
Other captive audience decisions by the high court have concerned restrictions on free speech in the medical privacy setting. In Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753 (Madsen), the court addressed limitations on picketing and related activity outside a health clinic that performed abortions. Those who wished to protest challenged an injunction that imposed a 36-foot buffer zone and noise restrictions around the private clinic’s entrances and driveway. (Id. at p. 759.) The high court agreed with the state supreme court’s determination that the
Significantly for present purposes, in the course of its analysis the court observed: “ ‘ “Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activity, and where the patient and his family . . . need a restful, uncluttered, relaxing, and helpful atmosphere.” ’ ” (Madsen, supra, 512 U.S. at p. 772.) The court added: “The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests.” (Id. at pp. 772–773.)
The high court reiterated and expanded upon these principles in Hill v. Colorado (2000) 530 U.S. 703 (Hill), addressing a criminal statute that prohibited knowingly approaching within eight feet of another person near a health care facility, and without the other person’s consent, for the purpose of leafleting, protesting, or counseling any other person. (Id. at p. 707.) In upholding the regulation, the court recognized the “significant difference between state restrictions on a speaker’s right to address a willing audience and those [laws] that protect listeners from unwanted communication.” (Id. at pp. 715–716.) It observed: “The right to free speech, of course, includes the right to attempt to persuade othеrs to change their views, and may not be curtailed simply because the speaker’s message may be offensive to his audience. But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it. Frisby[, supra,] 487 U.S. 474, 487.” (Id. at p. 716, italics added.) The court emphasized that a person’s “privacy interest in avoiding unwanted communication varies widely in different settings. It is far less important when ‘strolling through Central Park’ than when ‘in the confines of one’s own home,’ or when persons are ‘powerless to avoid’ it.” (Ibid.) “More specific to the facts of this case,” the court stated: “The unwilling listener’s interest in avoiding unwanted communication has been repeatedly identified in our cases. It is an aspect of the
The court in Hill summarized: “We have . . . recognized that the ‘right to persuade’ . . . is protected by the First Amendment . . . . Yet we have continued to maintain that ‘no one has a right to press even “good” ideas on an unwilling recipient.’ Rowan, supra, 397 U.S. at 738. None of our decisions has minimized the enduring importance of ‘a right to be free’ from persistent ‘importunity, following and dogging’ after an offer to communicate has been declined. While the freedom to communicate is substantial, ‘the right of every person “to be let alone” must be placed in the scales with the right of others to communicate.’ Id., at 736. It is that right, as well as the right of ‘passage without obstruction,’ that the . . . statute legitimately seeks to protect.” (Hill, supra, 530 U.S. at pp. 717–718, italics added.) The court concluded: “Persons who are attempting to enter health care facilities — for any purpose — are often in particularly vulnerable physical and emotional conditions. The State . . . has responded to its substantial and legitimate interest in protecting these persons from unwanted encounters, confrontations, and even assaults by enacting an exceedingly modest restriction on the speakers’ ability to approach.” (Id. at p. 729.)
b. The Aguilar concurring opinion’s reliance on the captive audience doctrine
The concurring opinion relied on the captive audience doctrine in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 (Aguilar), in which we upheld an injunction barring a manager from continuing to violate the FEHA by using derogatory racial or ethnic epithets to target Hispanic employees in the workplace. The concurring opinion first highlighted the workplace setting, concluding that “workplaces and jobsites are not usually thought of as marketplaces for the testing of political and social ideas,” and “strong public policies governing the workplace — both private and public — may justify some limitations on the free speech rights of employers and employees.” (Aguilar, at pp. 158–159 (conc. opn. of Werdegar, J.).)
The concurring opinion next focused on the circumstance that the employees subject to the defendant’s epithets constituted a “captive audience.”
c. Plaintiff’s misunderstanding of the captive audience doctrine — and proper application of that doctrine
Plaintiff, acknowledging some of the decisions discussed above, asserts that the captive audience problem “is resolved in the cases by denying access for some speakers to certain locations, like a person’s home, not by regulating the content of their speech.” (Italics added.) Yet, as the State observes, “that merely restates the problem that the Legislature enacted [the LGBT Long-Term Care Residents’ Bill of Rights] to address. Unlike people who reside in their own private homes, residents of long-term care facilities cannot simply ‘deny[] access’ to anyone they choose — especially not the very staff whom they depend on for ‘necessary care and services.’ (Stats. 2017, ch. 483, § 1, subd. (b), p. 3639.)”
Plaintiff also asserts that “the only ‘captive audience’ cases that permit content-based constraints on speech are locations like public schools and prisons where the state has compelled people to be present against their will.” (Italics added.) Relatedly, plaintiff asserts, “[t]he ‘captive audience’ cases cited by Justice Werdegar in her concurring opinion in Aguilar[, supra,] 21 Cal.4th [at pages] 159–162, likewise dealt with rights of access for speech, not justification of content-based [regulation] of speech.” But neither statement is correct. In Rowan, supra, 397 U.S. 728, the high court upheld a content-based regulation, permitting residents to opt out of receiving sexually themed mail in their homes; and in Pacifica, supra, 438 U.S. 726, the high court upheld a content-based administrative condemnation against a radio
Plaintiff further argues: “ ‘[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ ” (Quoting Pacifica, supra, 438 U.S. at pp. 745–746.) Yet the captive audience doctrine teaches that this principle does nоt hold when the offended party has no reasonable means to avoid the offensive speech. Ordinarily it is reasonable to require an “offended viewer . . . [to] avert his eyes [or ears].” (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212.) But when a captive listener has no choice but to hear the same offensive message “repeatedly” (
3. Conclusion regarding the state’s interest
In assessing the state’s interest outlined previously, the circumstance that those whom the Legislature has sought to protect — LGBT residents of long-term care facilities — also qualify as a captive audience, weighs heavily.
The residents of such facilities, including those who are transgender, are indeed captive, as that term is understood and applied in the high court decisions. They are constrained to receiving medical and related intimate personal care in what have become their homes. As noted, plaintiff relies on decisions such as Meriwether v. Hartop, 992 F.3d 492, which rejected a university’s bar on misgendering in an academic context — a quintessential “ ‘ “marketplace of ideas” ’ ” forum for debate about social issues. (Id. at p. 505; see also Keyishian v. Board of Regents (1967) 385 U.S. 589, 603 [a university “classroom is peculiarly the ‘marketplace of ideas’ ”].) Likewise, plaintiff relies on the high court’s decision in 303 Creative, supra, 600 U.S. 570. In that matter, the court characterized wedding
Assuming such decisions are generally pertinent, in the present case we are dealing neither with such marketplace of ideas settings, nor with such speakers. Instead, the legislation aims to protect a marginalized and captive audience’s interests in a wholly different and confined place — their care and living quarters — by regulating those who are employed to attend such persons, in order to promote, and not impair, medical and related intimate personal care. It is doubtful that such residents, including those who are transgender, would have a realistic opportunity to move to different housing or to another facility — even in the face of repeated conduct that affronts residents’ dignity and interferes with or undermines medical and related intimate personal care.
The Court of Appeal below determined that the challenged pronouns provision advances a compelling state interest, which that court viewed as protecting long-term care residents’ rights to dignity, and to be free from discrimination. (Taking Offense, supra, 66 Cal.App.5th at pp. 720–721.) As alluded to previously, this characterization of the state’s interest is overly general and unfocused. Instead, and bearing in mind the residents’ status as a captive audience, together with the Legislature’s findings and the academic literature outlined ante, part I.A.1. (describing the relevant context), the challenged provision protects a more narrowly defined compelling interest. To reiterate and summarize:
B. The Pronouns Provision Is Narrowly Tailored to Achieve the State’s Compelling Interest
The Court of Appeal and plaintiff maintain that
1. The Court of Appeal’s misunderstanding of the statute’s scope
The Court of Appeal broadly characterized
At least initially, it may be difficult for some staff persons, even those who in good faith seek to comply with a resident’s clearly stated preference, to overcome long-practiced patterns of speech, and to use pronouns different from those they would normally employ. (Cf. Clarke, They, Them, and Theirs (2019) 132 Harv. L.Rev. 894, 957 [although “[m]ost transgender people, including many who identify as nonbinary, use gendered pronouns such as he and she,” 29 percent of transgender persons surveyed “use ‘they/them’ pronouns” — and a small percentage use “even more unfamiliar pronouns”]; see also id. at p. 957, fns. 383–385.)
In any event, as the State observes: “A staff member who fails to use a resident’s proper pronouns because of unfamiliarity with new or infrequently used words, or [has good-faith] genuine difficulties when initially learning certain grammatical usages, is not ‘willfully’ acting ‘on the basis of’ the resident’s gender identity or sexual orientation. For an action to be ‘willfully’ taken ‘on the basis’ of gender identity or sexual orientation, such traits must ‘actually play[] a role’ in the staff member’s ‘decisionmaking process.’ ” (Quoting Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 610.)
The Legislature, doubtless aware of these issues, expressly and narrowly confined violations to those reflecting willful and repeated failure to use a
2. The assertion that the statute proscribes misgendering without also requiring that such behavior amount to harassing or discriminatory conduct as those terms are legally defined
Drawing on “the workplace context as an analogy” (Taking Offense, supra, 66 Cal.App.5th at p. 720), the Court of Appeal faulted
3. The assertion that the statute does not require that any given misgendering have harmed a resident
The Court of Appeal also faulted
Finally, assuming for the sake of argument that enforcement of the statute in a context in which the State had not shown harm to a resident would infringe on protected speech, plaintiff has not met its burden to demonstrate that such an application would represent “ ‘ “ ‘the generality’ ” [citation] or “vast majority” ’ of cases.” (People v. Martinez (2023) 15 Cal.5th 326, 352 (Martinez).)
C. The Statute Is Not Overbroad Even Though It Applies in Some Circumstances Outside the Presence of a Long-Term Care Resident
The Court of Appeal faulted
As explained ante, majority opinion, part III.D.4.b., we construe
Namely, the provision is properly viewed as applying to long-term care facility staff throughout the interior and exterior grounds of the facility’s campus who so misgender a resident in communications with other staff, residents, or visitors, even when such misgendering occurs outside that resident’s hearing or sight, yet in conjunction with the staff person’s job-related role. It also applies when there exists evidence that the resident has become aware of, and hence perceived, such misgendering directed at that resident. Yet the prohibition does not reach conduct or expression that occurs outside the campus of a long-term residential care facility, and that also is outside the business-related role of its staff.
Once again, this understanding of
So viewed, and contrary to the Court of Appeal’s determination, I conclude
committed by long-term care staff outside the immediate presence (by hearing or sight) of a resident who has clearly expressed a preference to be referred to by a particular name or pronoun. And once again, construing the challenged provision in this manner advances the state‘s compelling interest while “burden[ing] no more speech than necessary.” (Madsen, supra, 512 U.S. at p. 765.)15
D. Plaintiff Fails to Propose Any Equally Effective but Less Restrictive Alternative
Despite my conclusion that the challenged pronouns provision is sufficiently narrowly tailored as we have construed it, plaintiff argues that the provision fails an appropriately strict ends-means inquiry because, assertedly, the statute is not the least restrictive method of accomplishing the state‘s compelling interest. (See Ashcroft, supra, 542 U.S. at p. 665 [a challenged provision is ” ‘unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve’ “]; see generally Strict Judicial Scrutiny, supra, 54 UCLA L.Rev. at p. 1326 [characterizing this analysis as “express[ing] essentially the same demand” as the narrow tailoring inquiry].) As explained below, I disagree with plaintiff‘s position.
First, plaintiff alleges, the “law could be restricted to . . . facility-related communications, oral and written, rather than including all forms of speech in all contexts whatsoever.” This is, however, essentially how we construe the provision. Again, as observed ante, majority opinion, part III.D.4.b., we view
Second, plaintiff argues that enforcement of the challenged provision “could be placed within standard employment law policies and processes with
Third, raising an argument that apparently was not asserted below, plaintiff perfunctorily suggests that “long-term care facility owners could be directed or encouraged to survey their employees for their willingness to voluntarily . . . abide by” the pronouns provision, and “assign only willing employees to positions involving resident contact or communications.” Assuming such a scheme would advance thе state‘s earlier described compelling interest to some extent, it would not do so as effectively as the challenged provision. We are here addressing facilities that provide medical treatment and related intimate personal care — “not factories or mines or assembly plants.” (Madsen, supra, 512 U.S. at p. 772.) Long-term care facilities require employees who are able and willing to attend to all patients within a facility. In practice, this means, for example, that when called into a resident‘s room to assist with a medical or related intimate personal care task, a staff person must be ready, willing, and able to perform and interact, in accordance with basic norms of professional conduct (and consistently with each resident‘s rights under the enactment, including intimate autonomy privacy rights).16 The proper care of a resident cannot be contingent on finding a different “willing” staff member to respond in circumstances calling for immediate attention. In this sense, plaintiff‘s suggested alternative does not qualify as an equally effective less restrictive means of accomplishing the state‘s compelling interest.
Relatedly, plaintiff again suggests in perfunctory fashion that “by law or employment regulation the State should enable long-term care facilities to hire employee[s] who have no linguistic, moral or other objections to abiding by” the challenged pronouns provision. (Italics added.) Plaintiff suggests this
II. CONCLUSION
As explained ante, majority opinion, part III.D., we conclude that
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
GROBAN, J.
TAKING OFFENSE v. STATE OF CALIFORNIA
S270535
Concurring Opinion by Justice Kruger
I concur in part and concur in the judgment. I agree with the majority that Taking Offense lacks standing to sue under
“In general, California law does not give a party personal standing to assert rights or interests belonging solely to others.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 936.) Although this limitation is not coextensive with the standing requirements applicable in federal court, it likewise reflects important “prudential and separation of powers considerations.” (Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1249.) Standing requirements restrain litigation and the burdens that attend it. By limiting the circumstances in which courts become involved in disputes, standing helps to prevent judicial intrusion on the prerogatives of the other branches of government. Standing also helps to ensure that when courts do resolve disputes, they have the benefit of a concrete dispute between adverse parties.
The concerns underlying the standing requirement have special force when litigants seek to challenge legislation on constitutional grounds. Constitutional holdings persist absent a constitutional amendment or a judicial decision overruling the prior one. The risk of error is particularly significant in a system of adjudication, like ours, that adheres to the principle of stare decisis; if judicial precedents are to be disturbed only rarely, they should be rendered only when necessary, and with as much context and information as circumstances allow. This is one of the reasons why we do not typically
Here, I agree with the majority that
In the unusual circumstances of this case, however, I agree with the majority that it is appropriate to reach the merits of the Court of Appeal‘s decision to the limited extent necessary to address the “cloud over the constitutionality of the statute” cast by that decision. (Maj. opn., ante, at p. 27; see id., pt. II.G.) As I see it, addressing that issue is a relatively simple matter.
The Court of Appeal invalidated the pronouns provision based on a mistaken understanding of what that provision requires. (Taking Offense v. State of California (2021) 66 Cal.App.5th 696, 716–721 (Taking Offense).) The court acknowledged “that the state has a compelling interest in eliminating discrimination on the basis of sex,” including “discrimination on the basis of sexual orientation or transgender status.” (Id. at p. 717.) But it deemed the pronouns provision inadequately tailored to that interest, because the court understood the provision to “prohibit[] . . . isolated remarks not sufficiently severe or pervasive to create an objectively hostile . . . environment.” (Taking Offense, at p. 720.) “Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined,” the court reasoned, “the law criminalizes even occasional, isolated, off-hand instances of willful misgendering . . . without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.” (Ibid.)
Once the pronouns provision is properly understood, it becomes clear that the Court of Appeal was wrong to invalidate it on the ground that the provision does not require a showing of conduct or speech “amounting to actionable harassment or discrimination.” (Taking Offense, supra, 66 Cal.App.5th at p. 720.) Because the Court of Appeal‘s invalidation of the pronouns provision rests on a mistaken statutory interpretation, the court‘s decision should be reversed.
In my view, such a reversal would suffice to lift the cloud cast by the appellate court‘s decision. In recognition of the important prudential and separation of powers principles that underlie our standing doctrine, I would go no further. Any additional questions about the validity of the statute should be addressed only after a challenger has established its standing to invoke the courts’ power of judicial review.
KRUGER, J.
I Concur:
LIU, J.
Notes
Subdivision (b) of the statute provides: “This section shall not apply to the extent that it is incompatible with any professionally reasonable clinical judgment.” (