Case Information
*1 Filed 7/16/21; See concurring opinions
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Sacramento)
---- TAKING OFFENSE, C088485 Plaintiff and Appellant, (Super. Ct. No. 34-2017- 80002749-CU-WM-GDS) v.
STATE OF CALIFORNIA,
Defendant and Respondent. APPEAL from a judgment of the Superior Court of Sacramento County, Steven M. Gevercer, Judge. Reversed in part and affirmed in part.
Llewellyn Law Office and David Llewellyn, Jr., for Plaintiff and Appellant. Matthew Rodriquez, Attorney General, Thomas S. Patterson, Senior Assistant Attorney General, Tamar Pachter and Paul Stein, Supervising Deputy Attorneys General, Anna T. Ferrari, Deputy Attorney General, for Defendant and Respondent.
In 2017 the California Legislature enacted Senate Bill No. 219 (2017-2018 Reg. Sess.), which added to the Health and Safety Code the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. (Stats. 2017, ch. 483, §§ 1-4.) Petitioner Taking Offense, an “unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the last year,” sought a writ of mandate asserting facial challenges to two provisions of Senate Bill No. 219. The first, codified in Health and Safety Code section 1439.51, subdivision (a)(5), prohibits staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and pronoun. 1 Taking Offense challenges that provision on the bases that it violates staff members’ rights to free speech, free exercise of religion, and freedoms of thought and belief, and is vague and overbroad. As we will explain, we agree with Taking Offense that section 1439.51, subdivision (a)(5), to which we refer as the pronoun provision, is a content-based restriction of speech that does not survive strict scrutiny.
The second challenged provision, section 1439.51, subdivision (a)(3), makes it unlawful for long-term care facilities or facility staff to assign, reassign, or refuse to assign rooms, where such decisions are based on gender, other than in accordance with a transgender resident’s gender identity, unless at the transgender resident’s request. Taking Offense challenges the provision as a violation of non-transgender residents’ right to equal protection under the law, contending non-transgender residents are not afforded the same opportunity to request a roommate who does not conform to the resident’s gender identity. We disagree that section 1439.51, subdivision (a)(3), to which we refer 1 Further undesignated statutory references are to the Health and Safety Code. *3 as the room assignment provision, creates an unconstitutional gender-based classification and conclude Taking Offense’s equal protection argument lacks merit.
FACTS AND PROCEEDINGS
Senate Bill No. 219
Among other provisions, Senate Bill No. 219 added section 1439.51, which provides in relevant part: “(a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility [ 2 ] or facility staff to take any of the following 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: [¶] . . . [¶] (3) Where rooms are assigned by gender, assigning, reassigning, or refusing to assign a room to a transgender resident other than in accordance with the transgender resident’s gender identity, unless at the transgender resident’s request. [¶] . . . [¶] (5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns. [¶] . . . [¶] (b) This section shall not apply 2 “Long-term health care facility” includes facilities listed in Health and Safety Code section 1418 and Welfare and Institutions Code section 9701, subdivision (b). (Health & Saf. Code, § 1439.50, subd. (e).) Health and Safety Code section 1418 defines “long- term health care facility” as any licensed facility to include: skilled nursing facility, intermediate care facility, congregate living health facility, and nursing facility. Welfare and Institutions Code section 9701, subdivision (b) defines “long-term care facility” as “[a]ny nursing or skilled nursing facility, as defined by Section 1250 of the Health and Safety Code,” or “[a]ny residential care facility for the elderly as defined in Section 1569.2 of the Health and Safety Code.” Finally, Health and Safety Code section 1569.2, subdivision (o)(1) defines “ ‘Residential care facility for the elderly’ ” in part as “a housing arrangement chosen voluntarily by persons 60 years of age or over, or their authorized representative, where varying levels and intensities of care and supervision, protective supervision, personal care, or health-related services are provided, based upon their varying needs, as determined in order to be admitted and to remain in the facility.” *4 to the extent that it is incompatible with any professionally reasonable clinical judgment.” 3
Senate Bill No. 219 also added sections 1439.52 and 1439.54. Section 1439.52 requires long-term care facilities to employ procedures for keeping records of a resident’s gender identity, correct name as indicated by the resident, and the resident’s preferred pronoun. Section 1439.54 provides: “A violation of this chapter shall be treated as a violation under Chapter 2 (commencing with Section 1250), Chapter 2.4 (commencing with Section 1417), or Chapter 3.2 (commencing with Section 1569).” Section 1290, in turn, provides that willful and repeated violation of section 1439.51, subdivision (a) is a 3 In addition to subdivisions (a)(3) and (a)(5), which are the subject of this opinion, section 1439.51, subdivision (a) also prohibits facilities and staff from taking the following actions wholly or partially based on a resident’s actual or perceived sexual orientation, gender identity, gender expression, or HIV status: “(1) Deny admission to a long-term care facility, transfer or refuse to transfer a resident within a facility or to another facility, or discharge or evict a resident from a facility. [¶] (2) Deny a request by residents to share a room. [¶] . . . [¶] (4) Prohibit a resident from using, or harass a resident who seeks to use or does use, a restroom available to other persons of the same gender identity, regardless of whether the resident is making a gender transition or appears to be gender-nonconforming. Harassment includes, but is not limited to, requiring a resident to show identity documents in order to gain entrance to a restroom available to other persons of the same gender identity. [¶] . . . [¶] (6) Deny a resident the right to wear or be dressed in clothing, accessories, or cosmetics that are permitted for any other resident. [¶] (7) Restrict a resident’s right to associate with other residents or with visitors, including the right to consensual sexual relations, unless the restriction is uniformly applied to all residents in a nondiscriminatory manner. This section does not preclude a facility from banning or restricting sexual relations, as long as the ban or restriction is applied uniformly and in a nondiscriminatory manner. [¶] (8) Deny or restrict medical or nonmedical care that is appropriate to a resident’s organs and bodily needs, or provide medical or nonmedical care in a manner that, to a similarly situated reasonable person, unduly demeans the resident’s dignity or causes avoidable discomfort.”
misdemeanor punishable by a fine not to exceed $2,500 or by imprisonment of up to 180 days. 4
Procedural History
Taking Offense filed a petition for writ of mandate asserting facial challenges to section 1439.51, subdivisions (a)(3) and (a)(5). The petition alleged that subdivision (a)(5), the pronoun provision, (1) is unconstitutionally vague and overbroad, in violation of due process of law; (2) violates the equal protection of laws; and (3) violates First Amendment rights of freedom of expression, thought, religion, conscience, and association. The petition also contended subdivision (a)(3), the room assignment provision, violates the First Amendment right to freedom of association as well as equal protection.
Following briefing, the trial court issued a tentative ruling denying the petition in its entirety. No party contested the tentative ruling, which became the court’s order. Taking Offense timely filed a notice of appeal.
This case was fully briefed as of August 20, 2020. It was ordered to calendar in March 2021 and argued on May 18, 2021.
DISCUSSION
I
Standard of Review
“We begin by recognizing the ‘strong presumption of the constitutionality of an
act of the Legislature.’ [Citation.] ‘ “In considering the constitutionality of a legislative
4
Section 1290 provides a non-exclusive list of factors for the court to consider when
determining punishment: “(1) Whether the violation exposed the patient to the risk of
death or serious physical harm. [¶] (2) Whether the violation had a direct or immediate
relationship to the health, safety, or security of the patient. [¶] (3) Evidence, if any, of
willfulness. [¶] (4) The number of repeated violations. [¶] (5) The presence or
absence of good faith efforts by the defendant to prevent the violation.” (
Id
., subd. (c).)
*6
act we presume its validity, resolving all doubts in favor of the Act. Unless conflict with
a provision of the state or federal Constitution is clear and unquestionable, we must
uphold the Act.” ’ [Citation.] ‘[M]ere doubt by the judicial branch of the government as
to the validity of a statute will not afford a sufficient reason for a judicial declaration of
its invalidity, but . . . 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. [Citation.]” (
City of San Diego v. Boggess
(2013)
“The constitutionality of a statute is a question of law, which we review de novo.
[Citations.]” (
Vergara v. State of California
(2016)
II
First Amendment Challenge to Section 1439.51, Subdivision (a)(5) Taking Offense first challenges the pronoun provision on the basis that it is a content- and viewpoint-based restriction on speech that cannot survive strict scrutiny. Taking Offense raises multiple other contentions, including that the provision is: (1) a prior restraint on speech; (2) a violation of the freedom of thought, comparing *7 transgender residents of long-term care facilities to “kings and masters over the rest of the people” and employees of long-term care facilities to “their virtual subjects and slaves”; (3) a violation of the freedom of “conscience, religion and belief”; and (4) a violation of the right to free exercise of religion.
As we will explain, we agree that the pronoun provision is a content-based
restriction on speech. The law compels long-term care facility staff to alter the message
they would prefer to convey, either by hosting a message as required by the resident or by
refraining from using pronouns at all. We are required to apply strict scrutiny to the law
by the high court’s decision in
Reed v. Town of Gilbert
(2015)
A. First Amendment Principles
The First Amendment to the United States Constitution states: “Congress shall
make no law . . . abridging the freedom of speech . . . .” This fundamental right to free
speech applies to the states through the Fourteenth Amendment’s due process clause.
(
Gitlow v. New York
(1925)
A person’s right to speak freely prohibits the government from compelling
adoption of a government message and protects the right of citizens to refrain from
*8
speaking. (See
West Virginia State Board of Education v. Barnette
(1943)
Generally, the free speech clause protects a wide variety of speech a listener may
find offensive, including insulting speech based on race, national origin, or religious
beliefs. (See, e.g.,
Brandenburg v. Ohio
(1969)
But despite the broad language of the First Amendment and the free speech clause
of the California Constitution, it is a “long established” and “fundamental principle” that
“the freedom of speech . . . does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and unbridled license that
gives immunity for every possible use of language.” (
Gitlow v. New York
, 268
*9
U.S. at p. 666 [collecting cases].) “From 1791 to the present, . . . our society, like other
free but civilized societies, has permitted restrictions upon the content of speech in a few
limited areas, which are ‘of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality.’ [Citation.]” (
R.A.V. v. City of St. Paul
(1992)
Our Supreme Court has similarly recognized that the government is entitled to
regulate speech in a variety of contexts. (See
Aguilar
,
supra
,
Interpreting the high court’s decisions, the
Aguilar
court held civil liability for
“harassing speech that is sufficiently severe or pervasive to constitute employment
discrimination” under the California Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12900 et seq.) does not run afoul of the First Amendment. (
Aguilar
,
supra
, 21
Cal.4th at p. 137; see also
R.A.V.
,
The pronoun provision at issue here tests the limits of the government’s authority
to restrict pure speech that, while
potentially
offensive or harassing to the listener, does
not
necessarily
create a hostile environment. As the Third Circuit Court of Appeals has
recognized, “ ‘[w]here pure expression is involved,’ anti-discrimination law ‘steers into
the territory of the First Amendment.’ ” (
Saxe v. State College Area Sch. Dist.
,
supra
,
B. Content-Based Restrictions On Speech
The Supreme Court has recognized varying levels of scrutiny to balance
individuals’ right of free speech against the government’s interest in regulating speech.
Content-based laws are presumptively unconstitutional and are subject to strict scrutiny.
(
Reed
,
supra
,
Coakley
(2014)
The Attorney General argues the pronoun provision is content neutral (as opposed
to content based). Content-neutral laws are subject to intermediate scrutiny, which
requires that the law is narrowly tailored to serve a significant governmental interest and
leaves open ample alternative avenues for communication. (
Ward v. Rock Against
Racism
(1989)
First, the Attorney General contends the Legislature had a benign motive in
enacting the provision, and the law applies equally to all long-term care facility residents
of any sexual orientation, gender identity, gender expression, or HIV status. He quotes
the high court’s opinion in
Ward v. Rock Against Racism
,
supra
,
Applying
Reed
, the pronoun provision is content based on its face because it draws
a distinction between what is and what is not permissible based on the content of what is
said. (See
Reed
,
supra
,
6 “Misgender” refers to the systematic misuse of one’s preferred pronouns by another. (Clawson, I Now Pronoun-ce You: A Proposal For Pronoun Protections for Transgender People (2019) 124 Penn. St. L.Rev. 247, 255.)
Second, the Attorney General argues the law is content neutral because it does not
dictate speech; employees remain free to avoid using the pronouns at issue entirely. We
agree the pronoun provision does not compel speech in the same way that the government
compelled students to recite the pledge of allegiance and salute the American flag in
Barnette
,
supra
,
However, “the First Amendment against state action includes both the right to
speak freely and the right to refrain from speaking at all.” (
Wooley
,
supra
, 430 U.S. at p.
714.) For purposes of the First Amendment, there is no difference between a law
compelling an employee to utter a resident’s preferred pronoun and prohibiting an
employee from uttering a pronoun the resident does not prefer. (See
Gerawan Farming,
Inc. v. Lyons
, 24 Cal.4th at pp. 487-488 [right to free speech put at risk by
prohibiting a speaker from saying what he would otherwise say];
Riley v. National
Federation of Blind, Inc.
(1988)
Third, the Attorney General argues the restriction on speech is derived from the
individual resident, not the state, and therefore the statute does not reflect a state
preference regarding what language is used. This line of reasoning was rejected in
Tornillo
,
Fourth and finally, the Attorney General contends the restriction on speech is content neutral because pronouns are merely stand-ins for nouns and are not ideological messages. But the Legislature understood the importance of pronouns’ content and, thereby, their meaning , in this context, to the point that it passed a law criminalizing misgendering transgender residents of long-term care facilities. We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person’s expressed gender identity. But the First Amendment does not protect only speech that inoffensively and artfully articulates a person’s point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person’s gender identity may be different from the sex the person was assigned at birth. Consistent with the Legislature’s findings in enacting section 1439.51, we conclude misgendering does indeed convey an ideological message.
Because the pronoun provision is a content-based restriction of speech, we
disagree with both the trial court and the Attorney General, who argues the provision is
merely a time, place, or manner restriction. (See
Reno v. ACLU
(1997)
E.
Determining The Appropriate Level Of Scrutiny
We directed the parties to supplementally brief the issue of whether the Supreme
Court’s decision in
Reed
,
Reed
’s broad conclusion that content-based laws are subject to strict scrutiny
appears to apply here. But the Attorney General observes courts have been hesitant to
apply
Reed
’s holding to areas of law where alternative tests and different levels of
scrutiny had been applied before
Reed
was decided. (See, e.g.,
United States v. Swisher
(9th Cir. 2016)
The Attorney General does not contend any of the categories in the cases cited above applies here, but he contends the captive audience doctrine should be considered among the categories of speech subject to a standard requiring less than strict scrutiny. To address that issue, we briefly describe the captive audience doctrine.
Generally, listeners exposed to offensive speech are expected to avoid the speech
if they are not receptive thereto. (See
Erznozik v. City of Jacksonville
(1975) 422 U.S.
205, 210-211 [government may not censor nudity not amounting to obscenity where
images visible from the highway];
Cohen v. California, supra,
403 U.S. at pp. 21-22
[government may not censor potentially offensive message on the back of a jacket worn
in public corridors of courthouse, although passerby would be exposed to the message];
United States v. Playboy Entertainment Group, Inc.
(2000)
In
Frisby v. Schultz
(1988)
In
Madsen v. Women’s Health Center, Inc.
(1994)
Long-term care facility residents are analogous to citizens in their homes. There is little doubt that many--if not all--residents who have expressed a pronoun preference are an unwilling audience for repeated and willful misgendering, if it should occur, and they have little, if any, ability to simply avoid harassing or discriminatory speech.
However, while long-term care facility residents are similar to other captive
audience
listeners
, the speakers in this case are distinguishable from
speakers
in other
instances where the captive audience doctrine has been applied. Taking Offense asserts
that both residents
and
employees of long-term care facilities are “captive audiences,”
and therefore the doctrine should not be applied to lessen the scrutiny given to laws that
restrict the content of employees’ speech and to compel them to host a message with
which they may not agree. While we disagree with the characterization of
employees
as
“captive audiences” and see no support for that characterization in the relevant
jurisprudence, we recognize we must consider the legitimate speech interests of
employees, who, like residents, are not readily able or expected to go elsewhere to
express their views.
7
(See
Aguilar
,
supra
,
Nor do cases decided subsequent to
Reed
convince us we should apply anything
less than strict scrutiny to the pronoun provision. Recently in a case more closely related
to the facts here, the highest court considered a California law that required,
inter alia
,
licensed healthcare clinics to “notify women that California provides free or low-cost
services, including abortions, and give them a phone number to call.” (
Family and Life
Advocates
,
supra
, __ U.S. at p. __ [
The court recognized neither California nor the Ninth Circuit identified a persuasive reason why professional speech is a unique category exempt from ordinary First Amendment principles, but it did not “foreclose the possibility that some such reason exists.” ( Family and Life Advocates , __ U.S. at p. __ [138 S.Ct. at p. 2375].) It concluded it need not decide whether professional speech is exempt from those principles, because the regulation could not survive even intermediate scrutiny because it was not sufficiently drawn to achieve a substantial state interest. ( Ibid. )
While Family and Life Advocates did not expressly state that the content-based law at issue there was subject to strict scrutiny, it provided that “professional speech” was not an acceptable basis in that case on which to apply anything less than strict scrutiny and thereby implied that strict scrutiny was the appropriate standard of review in that case. We apply strict scrutiny to the pronoun provision. (§ 1439.51, subd. (a)(5).)
F. Applying Strict Scrutiny
1.
Government Interest
We analyze whether the government has shown it has a compelling interest in
preventing misgendering of LGBT residents of long-term care facilities. (
Family and
Life Advocates
, __ U.S. at p. __ [
“(a) In 2006, the California Legislature found that ‘lifelong experiences of marginalization place [LGBT] seniors at high risk for isolation, poverty, homelessness, and premature institutionalization. Moreover, many LGBT seniors are members of multiple underrepresented groups, and as a result, are doubly marginalized. Due to these factors, many LGBT seniors avoid accessing elder programs and services, even when their health, safety, and security depend on it.’
“(b) Recent studies confirm the state’s findings and provide evidence that LGBT seniors experience discrimination, including in long-term care facilities where residents are particularly vulnerable because they 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.
“(c) According to ‘Stories from the Field: LGBT Older Adults in Long-Term Care Facilities,’ a 2011 study published by the National Senior Citizens Law Center, these issues have gone unaddressed. In that study, 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. Eighty-one percent of respondents believed that other residents would discriminate against an LGBT elder in a long-term care facility, 89 *21 percent of respondents believed that staff would discriminate against an LGBT elder in a long-term care facility, and 53 percent believed that staff discrimination would rise to the level of abuse or neglect. Though this was a national report, it included instances of severe discrimination within California.
“(d) Even more recently, in 2013, the San Francisco LGBT Aging Policy Task Force commissioned a report by Professor Karen Fredriksen-Goldsen of the University of Washington, ‘Addressing the Needs of LGBT Older Adults in San Francisco: Recommendations for the Future,’ based on information collected from over 600 LGBT seniors residing in San Francisco, including nearly 140 LGBT seniors of color. This report found that nearly 60 percent of the study participants lived alone, and of the 15 percent of the study participants who had children, 60 percent reported that these children would not be available to assist them. Many reported poor physical and mental health with nearly one-third of all respondents reported poor general health, close to one-half reported having one or more disabilities, and one-third of male participants reported that they were living with [HIV] or acquired immune deficiency syndrome (AIDS). These results indicate that, 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 justified. Nearly one-half of the participants in the San Francisco study reported experiencing discrimination in the prior 12 months because of their sexual orientation or gender identity.” (Stats. 2017, ch. 483, § 1.)
We agree with the Attorney General that the state has a compelling interest in
eliminating discrimination on the basis of sex. (See, e.g.
Bd. of Dirs. of Rotary Int’l v.
Rotary Club of Duarte
(1987)
2.
Narrowly Tailored
As we have discussed, it is not enough for the government to identify a compelling
interest. The government must also show the statute furthers the compelling interest and
is “narrowly tailored to that end.” (
Reed
,
supra
,
The burden is on the government to prove proposed alternatives will not be as
effective as the challenged statute. (
Ashcroft, supra,
Taking Offense asserts criminalizing speech is not the least restrictive means for
constraining it. It proposes adopting an administrative employment law enforced by the
Fair Employment and Housing Agency, with its attendant due process rules and
regulations, requiring staff to refer to residents by their preferred names and pronouns to
prevent “hostile environment” civil rights objections similar to the workplace harassment
claims at issue in
Aguilar
,
The Attorney General responds Taking Offense’s proposed less restrictive means would not be as effective as those currently contained in the pronoun provision. He argues the employment laws described by Taking Offense do not offer protections to residents of long-term care facilities as non-employees, do not provide residents with a private right of action, and would create an excessively high burden by requiring elderly *24 residents to file administrative claims or possibly civil lawsuits. He contends that the law is no broader than necessary to serve the government interest: it only applies to employees in the workplace where the resident’s clearly expressed pronoun preference is willfully and repeatedly disregarded by staff, and it does not apply to the extent it is incompatible with any professionally reasonable clinical judgment. (§ 1439.51, subds. (a)(5), (b).)
In enacting section 1439.51, the Legislature recognized that “state and local laws already prohibit discrimination in public accommodations on the basis of actual or perceived sexual orientation, gender identity, gender expression, and HIV status.” (Stats. 2017, ch. 483, § 1, subd. (e).) The Legislature justified the apparent duplicative nature of section 1439.51, subdivision (a)(5) by asserting: “the promise of these laws has not yet been fully actualized in long-term care facilities. The purpose of this act is 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.” (Stats. 2017, ch. 483, § 1, subd. (e) . )
Taking Offense argues that imposing civil, rather than criminal, liability through
an administrative employment law scheme is
necessarily
a less restrictive means of
achieving the government interest. We acknowledge Taking Offense’s concern that the
imposition of criminal penalties and the associated stigma can have a chilling effect on
speech. (See
Ashcroft, supra,
Although we recognize Taking Offense’s concerns, the high court has also
recognized that criminal penalties are not always more severe than civil penalties, and
*25
civil actions often offer fewer procedural safeguards than their criminal counterparts.
(
New York Times v. Sullivan
(1964)
However, we conclude the pronoun provision--whether enforced through criminal
or civil penalties--is overinclusive in that it restricts more speech than is necessary to
achieve the government’s compelling interest in eliminating discrimination, including
harassment, on the basis of sex. Rather than prohibiting conduct and speech amounting
to actionable harassment or discrimination as those terms are legally defined, the law
criminalizes even occasional, isolated, off-hand instances of willful misgendering--
provided there has been at least one prior instance--without requiring that such occasional
instances of misgendering amount to harassing or discriminatory conduct. Using the
workplace context as an analogy, the statute prohibits the kind of isolated remarks not
sufficiently severe or pervasive to create an objectively hostile work environment.
(
Meritor Savings Bank v. Vinson
,
supra
,
We recognize the Legislature’s legitimate and laudable goal of rooting out
discrimination against LGBT residents of long-term care facilities. (See
Roberts v.
United States Jaycees
,
But the Attorney General has not shown that 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, is necessary to advance that goal.
Taking Offense raises multiple other arguments. First, it asserts the pronoun
provision violates employees’ freedom of thought, conscience, and belief. These
arguments are subsumed by our discussion on the First Amendment (e.g.
Wooley
,
III Equal Protection Challenge to Section 1439.51, Subdivision (a)(3) Section 1439.51, subdivision (a)(3), the room assignment provision, requires that when room assignments in a long-term care facility are made pursuant to a gender-based assignment system, it shall be unlawful for the facility or facility staff to “assign[ ], reassign[ ], or refus[e] to assign a room to a transgender resident other than in accordance with the transgender resident’s gender identity, unless at the transgender resident’s request.”
Taking Offense contends the room assignment provision violates the equal protection clause of the Fourteenth Amendment of the United States Constitution, 8 article I, section 7 of the California Constitution, and the Unruh Civil Rights Act. It makes two implicit assumptions about the room assignment provision: (1) the provision requires a facility to accommodate a transgender resident’s request to be assigned to a room other 8 Taking Offense asserts that “gender,” “gender identity,” and “gender expression” are not protected designations under the equal protection clause of the Fourteenth Amendment of the federal Constitution. It acknowledges, however, that when “gender” is used objectively as referring to “sex” rather than “gender identity” or “gender expression,” gender is a suspect classification invoking heightened scrutiny under the federal Constitution. After briefing concluded, the United States Supreme Court concluded a law proscribing discrimination on the basis of sex proscribes discrimination on the basis of sexual orientation or transgender status. ( Bostock , __ U.S. __ [140 S.Ct. 1731].) Accordingly, a law drawing a distinction based on transgender status is subject to heightened scrutiny under federal law.
than in accordance with the resident’s gender identity; and (2) a resident’s request to be assigned a room other than in accordance with the resident’s gender identity is equivalent to dictating the gender or gender identity of the resident’s roommate. Based on those assumptions, Taking Offense asserts the provision grants transgender residents “special rights” to choose whether to be assigned a roommate according to the transgender person’s gender identity or the person’s assigned sex at birth, while failing to recognize the same right of non-transgender residents. We disagree.
A.
Equal Protection Under The Federal And California Constitutions
The United States and California Constitutions prohibit denial of equal protection
of the laws. (U.S. Const., 14th Amend.; Cal Const., art. 1, § 7, subd. (a).) The equal
protection clause requires the state to treat all persons similarly situated alike or,
conversely, to avoid all classifications that are “arbitrary or irrational” and those that
reflect “ ‘a bare . . . desire to harm a politically unpopular group.’ ” (
City of Cleburne v.
Cleburne Living Ctr., Inc.
(1985)
Under federal law, the high court has prescribed different levels of scrutiny
depending on whether the law “targets a suspect class.” (
Romer v. Evans
(1996) 517
U.S. 620, 631.) “At a minimum, a statutory classification must be rationally related to a
legitimate government purpose. [Citations.] Classifications based on race or national
origin [citation], and classifications affecting fundamental rights [citation] are given the
most exacting scrutiny. Between these extremes of rational basis review and strict
scrutiny lies a level of intermediate scrutiny, which generally has been applied to
discriminatory classifications based on sex or illegitimacy. [Citations.]” (
Clark v. Jeter
*29
(1988)
Under California law, a classification based on gender is considered “suspect” for
purposes of equal protection analysis. (
Sail’er Inn, Inc. v. Kirby
(1971)
We apply equal protection principles equally regardless of the gender being
discriminated against. (
Mississippi University for Women v. Hogan
(1982)
B. The “Similarly Situated” Requirement
“The first prerequisite to a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects two or more
similarly
situated
groups in an unequal manner.” (
In re Eric J.
(1979)
“The use of the term ‘similarly situated’ in this context refers only to the fact that ‘ “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” . . .’ [Citation.] There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” ( People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
Taking Offense contends all sexes and genders are similarly situated for equal
protection purposes because they are all protected by the same legal classification, “sex,”
under federal and state law. That characterization is too broad; the Supreme Court and
California courts have upheld statutes where a classification based on gender “is not
invidious, but rather realistically reflects the fact that the sexes are not similarly situated
in certain circumstances.” (
Michael M. v. Superior Court of Sonoma County
(1981) 450
U.S. 464, 469 (plur. opn.) [upholding law imposing criminal penalties on males for
engaging in sexual intercourse with females under the age of 18 to whom they are not
married, but not similarly punishing females];
Tuan Anh Nguyen v. INS
(2001) 533 U.S.
53, 73 [upholding a federal law imposing different requirements for citizenship of a child
born to one citizen parent and one noncitizen parent, depending upon which parent is the
citizen];
Amy G. v. M.W.
(2006)
The Attorney General contends transgender and non-transgender residents are not
similarly situated because transgender residents are more likely to be assigned a room
inconsistent with their gender identity than are non-transgender residents. We have
previously rejected a similar argument made in the context of gender-based
classifications in funding for domestic violence programs, recognizing: “this analysis
improperly views equal protection rights as group rights, rather than individual rights,
and permits discrimination simply because fewer men than women are affected.”
(
Woods v. Horton, supra,
We recognize that transgender residents possess a characteristic that non- transgender residents do not, namely, a biological sex at birth that differs from their expressed gender identity. Nevertheless, we conclude transgender residents of long-term care facilities are similarly situated to non-transgender residents for purposes of the room assignment provision. Within the context of the statute, both transgender and non- transgender residents of long-term care facilities are subject to a facility’s gender-based rooming assignment system, and the law creates a classification based on whether a resident is transgender.
Because we conclude transgender residents and non-transgender residents of long- term care facilities are similarly situated for purposes of an equal protection analysis, we analyze whether the classification established by this provision unconstitutionally favors transgender residents.
C. Analysis
Before we apply strict scrutiny (
Molar supra
,
This provision creates a general rule and an exception to the rule. The general rule makes it unlawful for a long-term care facility or facility staff to assign, reassign, or *33 refuse to assign a room to a transgender resident other than in accordance with the resident’s gender identity. This requirement provides no special rights to transgender residents; rather, it only clarifies that gender-based room assignment decisions involving transgender residents must be made according to the resident’s gender identity rather than their biological sex at birth.
But the same provision then creates an exception to the general rule: it is not unlawful for a facility or facility staff to assign or reassign a room to a transgender resident other than in accordance with the resident’s gender identity if the resident has so requested. In conclusory fashion, Taking Offense asserts the room assignment provision provides transgender residents “special rights to choose whether to be assigned a roommate according to the transgender person’s gender identity or his/her biological sex/gender.” Building on that assertion, Taking Offense contends principles of equal protection require that non-transgender residents be given the same rights as transgender residents to dictate their roommate assignments. Specifically, Taking Offense claims: “biological, physical, genetic, sexual females have rights to intimate association, privacy, security, and autonomy to decline to accept roommates of the male sex, whatever may be the other person’s ‘gender identity.’ ”
Although we understand the point, Taking Offense fails to explain how the room assignment provision provides any rights to transgender residents not also provided to non-transgender residents. We recognize that the provision establishes that it is not unlawful to assign a room to a transgender resident other than in accordance with the resident’s gender identity where the resident has made such a request. But Taking Offense’s assumption that this exception also establishes the affirmative right of transgender residents to insist any roommate requests be honored is not well taken. The provision at issue does not even require the facility to provide transgender residents with the ability to make such a request, let alone require a facility or its staff to honor--or even *34 consider--a transgender resident’s room assignment request. 10 The provision simply declares it not unlawful for a facility to accommodate a transgender resident’s request. (§ 1439.51, subd. (a)(3).)
Taking Offense fails to show that the right afforded to transgender residents by the room assignment provision--the right to a room assignment in accordance with the resident’s gender identity--is any different from the right afforded to non-transgender residents. Accordingly, we conclude Taking Offense has failed to establish that the room assignment provision violates equal protection.
In addition to its equal protection argument, Taking Offense also asserts that the room assignment provision violates non-transgender residents’ freedom of intimate association by not extending to those residents the right to choose extended to transgender residents. However, as we have discussed, the room assignment provision does not recognize any right to intimate association for transgender residents not provided to non-transgender residents. Additionally, to the extent Taking Offense contends that non-transgender residents of long-term care facilities have a right to intimate association, its challenge to the room assignment provision is misplaced because that provision does not facially restrict any long-term care facility resident’s right of intimate association. Accordingly, Taking Offense’s argument lacks merit.
10 Section 1439.51, subdivision (a)(2) makes it unlawful for a facility or facility staff to “[d]eny a request by residents to share a room” where that decision is based wholly or partially on the resident’s actual or perceived sexual orientation, gender identity, gender expression, or HIV status.
DISPOSITION
The judgment denying Taking Offense’s petition for writ of mandate, declaratory and injunctive relief, with respect to section 1439.51, subdivision (a)(5) is reversed. In all other respects, the judgment is affirmed. Each side is to bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/ Duarte, J.
We concur:
/s/ Hull, Acting P. J.
/s/ Robie, J.
HULL, Acting P. J., Concurring.
I concur. I write separately to address further the issue of intimate association. Taking Offense argues that a resident’s right to intimate association prevails not just over a transgender resident’s choice of roommates, but also over the facility’s mere assignment of roommates pursuant to the room assignment provision in Health and Safety Code section 1439.51, subdivision (a)(3) and regardless of any resident’s choice or preference. Taking Offense contends that the room assignment provision on its face interferes with a resident’s right of intimate association if, for example, the facility assigns a resident with a male physical appearance to room with a resident who has a female physical appearance and gender at birth who opposes sharing a room with someone of the opposite physical appearance and gender at birth.
The majority concludes that the room assignment provision does not facially restrict any long-term care facility resident’s right of intimate association. In this concurrence, I explain briefly why the majority’s holding on that issue is correct and why Taking Offense’s argument can be addressed only in an as-applied challenge.
To succeed on a facial challenge, Taking Offense must establish that the statute
“ ‘is unconstitutional in all of its applications.’ (
Washington State Grange v. Washington
State Republican Party
(2008)
Defining the constitutional right of intimate association, the United States
Supreme Court “has concluded that choices to enter into and maintain certain intimate
human relationships must be secured against undue intrusion by the State because of the
role of such relationships in safeguarding the individual freedom that is central to our
constitutional scheme. In this respect, freedom of association receives protection as a
*37
fundamental element of personal liberty.” (
Roberts v. U.S. Jaycees
(1984)
The high court in U.S. Jaycees explained the type of intimate relationships the Constitution protects. I quote the opinion at length: “The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State. [Citations.] Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State. [Citations.] Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty. [Citations.]
“The personal affiliations that exemplify these considerations, and that therefore suggest some relevant limitations on the relationships that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family— marriage, [citation]; childbirth, [citation]; the raising and education of children, [citation]; and cohabitation with one’s relatives, [citation]. Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of *38 qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty. Conversely, an association lacking these qualities—such as a large business enterprise—seems remote from the concerns giving rise to this constitutional protection. Accordingly, the Constitution undoubtedly imposes constraints on the State’s power to control the selection of one’s spouse that would not apply to regulations affecting the choice of one’s fellow employees. [Citations.]
“Between these poles, of course, lies a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual’s freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments. [Citation.] We need not mark the potentially significant points on this terrain with any precision. We note only that factors that may be relevant include size, purpose, policies, selectivity, congeniality, and other characteristics that in a particular case may be pertinent.” ( U.S. Jaycees, supra , 468 U.S. at pp. 618-620, italics added [state statute’s prohibition of discrimination in places of public accommodation based on sex constitutionally applied to chapters of the Jaycees Club and required them to admit women; statute did not violate male club members’ rights of intimate association].)
The United States Supreme Court has not held that the constitutional protection to
intimate association is restricted to relationships among family members. (
Board of
Directors of Rotary Internat. v. Rotary Club of Duarte
(1987)
California’s Constitution “affords greater privacy, expressive, and associational
rights in some cases than its federal counterpart. (Cal. Const., art. I, §§ 1, 2; [citations].)”
(
Isbister v. Boys’ Club of Santa Cruz, Inc.
(1985)
In both of these cases, the courts extended intimate association rights beyond close
family relationships due to the unique characteristics of the human relationships involved.
In this matter, by contrast, the record contains no evidence by which we can assess where
the roommate relationship’s “objective characteristics locate it on a spectrum from the
most intimate to the most attenuated of personal attachments
.
” (
U.S. Jaycees, supra
,
Taking Offense relies on
Fair Housing Council of San Fernando Valley v.
Roommate.com, LLC
(9th Cir. 2011)
In Fair Housing Council , an internet company provided a roommate-matching website. Through the website, it asked questions about the sex and sexual preference of potential roommates. It matched site users to be roommates based in part on those characteristics and provided them a list of housing seekers and available rooms. ( Fair Housing Council, supra , 666 F.3d. at pp. 1218-1219.)
The federal Fair Housing Act prohibits discrimination on the basis of sex in the
rental of a “dwelling.” (
Fair Housing Council, supra
,
The court reasoned, “To determine whether a particular relationship is protected
by the right to intimate association we look to ‘size, purpose, selectivity, and whether
others are excluded from critical aspects of the relationship.’ ([
Rotary Club, supra
,]
The key factors in the court of appeals’ ruling were the selective manner in which the relationship was created and the expectations and characteristics of a relationship created when a person chooses to lease part of his or her living space to another. By contrast, in the case before us, there is no evidence of the selective creation or characteristics of a relationship between roommates in a long-term care facility or other pertinent factors. Without an evidentiary showing, a court is unable to determine whether the relationship qualifies as a constitutionally protected intimate association.
I understand the concerns set forth in plaintiff’s complaint, but we must leave a solution to those concerns to an individual case and to another day.
/s/ Hull, Acting P. J.
ROBIE, J., Concurring.
I concur fully in the majority opinion but write separately to express further thoughts on the use of pronouns. One’s name or the pronoun that represents that name is the most personal expression of one’s self. To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel. The impact of using inappropriate pronouns is even more offensive and hurtful when it occurs in an environment where one cannot choose the persons with whom one associates. The Legislature recognized this fact (as recounted in the opinion) but unfortunately chose a prophylactic remedy to eliminate misuse of pronouns that just went too far. Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation.
/s/
Robie, J.