Taking Offense v. State of Cal.

IN THE SUPREME COURT OF

CALIFORNIA

TAKING OFFENSE,

Plaintiff and Appellant,

v.

STATE OF CALIFORNIA,

Defendant and Respondent.

S270535

Third Appellate District

C088485

Sacramento County Superior Court

34-2017-80002749-CU-WM-GDS

November 6, 2025

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 article VI, section 6 of the

California Constitution.

Justice Kruger filed a concurring opinion, in which Justice Liu

concurred.

TAKING OFFENSE v. STATE OF CALIFORNIA

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 Health & Saf.

Code, div. 2 to add ch. 2.45; hereinafter enactment, or the LGBT

Long-Term Care Residents’ Bill of Rights.) The legislation

comprehensively addresses issues concerning lesbian, gay,

bisexual, and transgender (LGBT) seniors’ access to, and

treatment by, “[l]ong-term care facilit[ies]” — an umbrella term

covering entities that provide services ranging from skilled

nursing to residential personal care for the elderly. (Health &

Saf. Code, § 1439.50, subd. (e).)1

Only one aspect of the enactment is at issue in this court.

Health and Safety Code section 1439.51, subdivision (a)(5)

prohibits staff at long-term care facilities from “[w]illfully and

repeatedly fail[ing] to use a resident’s preferred name or

pronouns after being clearly informed of the preferred name or

pronouns,” when they do so “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” (sometimes referred to hereinafter as the

pronouns provision).

1

This opinion uses the acronym “LGBT” in referring to

persons protected under the challenged statute because that is

the term the Legislature used. See also post, footnote 3.

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Opinion of the Court by Guerrero, C. J.

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 this court, defendant the State of California (the State)

asserted for the first time that plaintiff lacks capacity to sue

state officers or entities under the “taxpayer standing” doctrine

articulated in Code of Civil Procedure section 526a.2 As

explained below, we agree with the State that the present

version of section 526a, as amended in 2018, does not allow

standing to sue wholly state officers or entities. And yet, under

the unusual circumstances of this case, and as we have done in

analogous settings in the past, we also conclude that our

interpretation of the statute does not impair our jurisdiction to

rule on the merits of the claim before us.

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

2

Subsequent undesignated statutory references are to the

Code of Civil Procedure.

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

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.

3

We sometimes employ the term “misgendering” as

shorthand for “[w]illfully and repeatedly fail[ing] to use a

resident’s preferred name or pronouns after being clearly

informed.” (Health & Saf. Code, § 1439.51, subd. (a)(5).)

Relatedly, we use the term “preferred pronouns” when quoting

the statutory text. (Ibid.) See also ante, footnote 1.

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

I. FACTS AND PROCEDURAL HISTORY

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

(Civ. Code, § 51 et seq.) bars “all business establishments of

every kind whatsoever” (id., § 51, subd. (b)) from discriminating

on the basis of “sexual orientation” (ibid.) or “gender identity

and gender expression” (id., subd. (e)(6)). The California Fair

Employment and Housing Act (FEHA) (Gov. Code, § 12900 et

seq.) prohibits “the owner of any housing accommodation” from

engaging in discrimination or harassment on the basis of

“gender, gender identity, gender expression, [or] sexual

orientation.” (Id., § 12955, subd. (a).) Health and Safety Code

section 1569.269, subdivision (b), enacted as part of the

Resident’s Bill of Rights (Stats. 2014, ch. 702, § 1), bars

residential care facilities for the elderly from discriminating

against a resident based on “actual or perceived sexual

orientation, or actual or perceived gender identity.”

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

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Opinion of the Court by Guerrero, C. J.

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 justified.

Nearly one-half of the participants . . . reported experiencing

discrimination in the prior 12 months because of their sexual

orientation or gender identity.” (Id., subd. (d).)

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

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

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 Health and Safety Code

section 1439.51, subdivision (a), making it “unlawful for a long-

term care facility or facility staff to take” various 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.” (Ibid.) The Legislature

listed the unlawful conduct: “(1) Deny[ing] admission to a long-

term care facility, transfer[ring] or refus[ing] to transfer a

resident within a facility or to another facility, or discharg[ing]

or evict[ing] a resident from a facility. [¶] (2) Deny[ing] a

request by residents to share a room. [¶] (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. [¶] (4) Prohibit[ing] a resident

from using, or harass[ing] 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. [¶]

(5) Willfully and repeatedly fail[ing] to use a resident’s preferred

name or pronouns after being clearly informed of the preferred

name or pronouns. [¶] (6) Deny[ing] a resident the right to

wear or be dressed in clothing, accessories, or cosmetics that are

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

permitted for any other resident. . . .” (Health & Saf. Code,

§ 1439.51, subd. (a)(1)–(6), italics added.)4

The enactment adopted two additional substantive

provisions. Health and Safety Code section 1439.52 requires

long-term care facilities to maintain records of a resident’s

“gender identity, correct name, as indicated by the resident, and

pronoun of each resident, as indicated by the resident.” Health

and Safety Code section 1439.53 addresses privacy. Subdivision

4

Subdivision (a) continues, listing as additional proscribed

acts: “(7) Restrict[ing] 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[ing] or

restrict[ing] medical or nonmedical care that is appropriate to a

resident’s organs and bodily needs, or provid[ing] medical or

nonmedical care in a manner that, to a similarly situated

reasonable person, unduly demeans the resident’s dignity or

causes avoidable discomfort.” (Health & Saf. Code, § 1439.51,

subd. (a)(7) & (8).)

Subdivision (b) of the statute provides: “This section shall

not apply to the extent that it is incompatible with any

professionally reasonable clinical judgment.” (Health & Saf.

Code, § 1439.51, subd. (b).) Subdivision (c) of the statute

requires that each facility post a notice specifying that it does

not practice or permit “ ‘discrimination, including, but not

limited to, bullying, abuse, or harassment, on the basis of actual

or perceived sexual orientation, gender identity, gender

expression, or HIV status,’ ” and noting that any person may

“ ‘file a complaint with the Office of the State Long-Term Care

Ombudsman . . . if you believe that you have experienced this

kind of discrimination.’ ” (Health & Saf. Code, § 1439.51,

subd. (c).)

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

(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

Health and Safety Code section 1439.54, which incorporates pre-

existing enforcement provisions. 5 As explained post, part III.G.,

by virtue of this section, licensed entities and their staffs who

violate any of the enactment’s substantive provisions, including

the challenged pronouns provision, are subject to the same

administrative and civil — and, in egregious cases, criminal —

penalties applicable to violations of myriad other duties imposed

on long-term care facilities and their staffs.

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 private 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 Code of Civil Procedure [section] 1084 et seq.

5

That section provides: “A violation of this chapter [2.45]

shall be treated as a violation under Chapter 2 [governing

‘Health Facilities’] (commencing with section 1250), Chapter 2.4

[governing ‘Long-Term Health Facilities’] (commencing with

section 1417), or Chapter 3.2 [governing ‘Residential Care

Facilities for the Elderly’] (commencing with section 1569).”

(Health & Saf. Code, § 1439.54.)

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Opinion of the Court by Guerrero, C. J.

and [section] 526a” because those statutes had been “construed

by the courts of the State to include taxpayer and citizen actions

against the State itself, its officials and agents.” (Italics

omitted.) The petition asserted that Health and Safety Code

section 1439.51, subdivision (a)(5)’s pronouns provision is

unconstitutional “[o]n its face” on numerous grounds, including

due process of law, equal protection of the laws, freedom of

speech and expression, prior restraint, and freedom of religion,

conscience, and related rights. The petition sought “[j]udicial

mandate, declarations and injunctive relief ordering” that the

pronouns provision is unconstitutional and invalid in each

respect.

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 . . . section 526a to prevent the waste of taxpayer f[u]nds to

enforce” the targeted provisions of the enactment, and to

“prevent state actors from enforcing” those provisions. The

court focused on plaintiff’s “conten[tion] that the law could be

enforced by myriad local entities or District Attorneys,” and

granted its motion to add several state officers and entities as

named respondents (the California Attorney General, State

Department of Social Services, and State Department of Public

Health). The court did not specifically address whether plaintiff

had standing to bring its constitutional challenges, but

proceeded to review and reject each of plaintiff’s constitutional

claims.

Regarding plaintiff’s various First Amendment

challenges, the trial court observed that although Health and

Safety Code section 1439.51, subdivision (a)(5) governs both a

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TAKING OFFENSE v. STATE OF CALIFORNIA

Opinion of the Court by Guerrero, C. J.

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, and imposes viewpoint discrimination.” 6 The

court denied plaintiff’s request for a writ of mandate, and

declaratory and injunctive relief.

D. Proceedings in the Court of Appeal

The appellate court reversed. It rejected the argument

that Health and Safety Code section 1439.51,

subdivision (a)(5)’s pronouns provision is content neutral, and

6

The court dismissed plaintiff’s remaining arguments,

finding the provision did not constitute a prior restraint, or

violate “the right to freedom of thought, belief, and conscience,

by demanding adherence to an ideology concerning sex and

gender.” The court also held that the provision did not violate

the First Amendment’s free exercise or establishment clauses.

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Opinion of the Court by Guerrero, C. J.

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

7

The appellate court found it unnecessary to address

plaintiff’s other challenges to the provision. (Taking Offense,

supra, 66 Cal.App.5th at p. 721 [noting plaintiff’s various other

arguments, disposing of some of them, and declining to address

whether the provision is “a viewpoint-based restriction of

speech, and is unconstitutionally vague and overbroad”].)

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of Supervisors (1989) 49 Cal.3d 432, 438.) The State argues that

plaintiff lacks taxpayer standing under section 526a because

that statute applies only to suits against local governmental

entities and officers — and here, plaintiff has sued only the

State and a state officer and entities. The State further contends

that section 526a occupies the field of suits by taxpayers, and

that the common law taxpayer standing doctrine, under which

suits against state officers and entities have been allowed, has

ceased to exist.

Plaintiff, which has the burden to establish standing

(Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 327),

contends that it has standing under section 526a because,

despite that provision’s limiting words speaking of suing only

local entities or officers, this court has judicially broadened the

statute to also allow suits against the state and its officers and

entities. Plaintiff further argues that common law taxpayer

standing continues to exist and is satisfied here.

As explained below, we agree with the State that section

526a, as amended in 2018, does not afford standing to sue the

State or its officers or entities such as those in this case. But

under the particular circumstances of this case, our

interpretation of section 526a does not impair our ability to

address the Court of Appeal’s analysis and judgment on the

merits. In view of this determination, we need not resolve the

parties’ dispute concerning whether the doctrine of common law

taxpayer standing continues to exist.8 Yet, as explained below,

8

For the same reasons we find it unnecessary to resolve the

parties’ additional dispute concerning whether plaintiff has

standing pursuant to the common law public interest doctrine.

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we encourage the Legislature (possibly working with the Law

Revision Commission) to comprehensively review both section

526a and existing common law authority, in order to harmonize

and clarify the circumstances under which the state and its

officers or entities may be subject to a taxpayer standing suit.

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 to prevent their

withdrawal from the treasury in payment or satisfaction of

(See, e.g., Save the Plastic Bag Coalition v. City of Manhattan

Beach (2011) 52 Cal.4th 155, 166.)

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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 section 526a in 1909, providing

for a version of taxpayer standing as follows: “An action to

obtain a judgment, restraining and preventing any illegal

expenditure of, waste of, or injury to, the estate, funds, or other

property of a county, town, city or city and county of the state,

may be maintained against any officer thereof, or any agent, or

other person, acting in its behalf, either by a citizen resident

therein, or by a corporation, who is assessed for and is liable to

pay, or, within one year before the commencement of the action,

has paid, a tax therein.” (Former § 526a, added by Stats. 1909,

ch. 348, § 1, p. 578.) This language was operative in 2017, when

9

Numerous other early cases, before and after Winn,

likewise simply noted the plaintiff’s status as a taxpayer, and

then proceeded to address claims on the merits. (See, e.g., Soule

v. McKibben (1856) 6 Cal. 142; Mock v. City of Santa Rosa (1899)

126 Cal. 330, 336; McConoughey v. City of San Diego (1900)

128 Cal. 366, 367.) We subsequently articulated justiciability

restrictions on common law taxpayer actions. (See Dunn v. Long

Beach L. & W. Co. (1896) 114 Cal. 605, 609; Keith v. Hammel

(1915) 29 Cal.App. 131, 134–135; Nickerson v. San Bernardino

(1918) 179 Cal. 518, 522–523 (Nickerson); Schaefer v. Berinstein

(1956) 140 Cal.App.2d 278, 289; Silver v. Watson (1972)

26 Cal.App.3d 905, 909–910; Gilbane Building Co. v. Superior

Court (2014) 223 Cal.App.4th 1527, 1532–1533.) In addition to

allowing common law taxpayer suits against local officers and

entities, some of our early decisions, without analysis, allowed

taxpayer standing against state governmental officers. (See

Livermore v. Waite (1894) 102 Cal. 113, 124; Wheeler v. Herbert

(1907) 152 Cal. 224, 227–228.)

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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 § 526a.) Third, it required that

a qualified plaintiff be liable to pay, or have paid, “a tax therein”

within one year before suing. (Ibid.; see generally Thomas v.

Joplin (1910) 14 Cal.App. 662, 664–665 [apparently viewing the

Legislature’s codification as having occupied the field].)

C. Continuing Development of the Common Law

Taxpayer Standing Doctrine and Early

Recognition of Former Section 526a

After the enactment of former section 526a, both the

statutory and common law doctrines continued to develop. 10

Eventually, several appellate decisions construed former section

526a broadly to afford standing, allowing plaintiffs to assert

10

See, e.g., Clouse v. City of San Diego (1911) 159 Cal. 434,

435, 438; Osburn v. Stone (1915) 170 Cal. 480, 482, 491;

Nickerson, supra, 179 Cal. at pages 522–527; Crowe v. Boyle

(1920) 184 Cal. 117, 152 (Crowe); Mines v. Del Valle (1927)

201 Cal. 273, 279 (Mines); Warfield v. Anglo & London Paris

Nat. Bk. (1927) 202 Cal. 345, 347; Pratt v. Security Trust &

Savings Bk. (1936) 15 Cal.App.2d 630, 636–638; see also Silver

v. City of Los Angeles (1961) 57 Cal.2d 39, 41–42; Gogerty v.

Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 731.

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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 section 526a, the appellate court in Ahlgren noted that,

nationally, “the great weight of authority suggests the rule that

the taxpayer does have such right.” (Ahlgren, at p. 252.)

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 section 526a — the appellate court held that

the “[p]laintiff taxpayers have standing to maintain an equity

suit to enjoin allegedly illegal expenditures” by the state

controller. (Williams, at p. 395.)

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D. Our Decisions Construing Former Section 526a

as Allowing Suit Against the State

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

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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 dictum:

“Moreover, we have not limited suits under section 526a to

challenges of policies or ordinances adopted by the county, city

or town. . . . Indeed, it has been held that taxpayers may sue

state officials to enjoin such officials from illegally expending

state funds. ([Ahlgren, supra,] 209 Cal.App.2d 248, 252–

254 . . . ; [Williams, supra,] 7 Cal.App.3d 390, 395 . . . .)” (Blair,

at p. 268, italics added.)

To the extent the italicized passage has been understood

as an authoritative interpretation of former section 526a, it is

problematic dictum. As shown earlier, both Ahlgren, supra,

209 Cal.App.2d 248, and Williams, supra, 7 Cal.App.3d 390,

involved common law taxpayer suits against state defendants,

and Ahlgren took pains to highlight and discuss the propriety of

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such suits. Neither decision can be construed as contemplating,

let alone applying, former section 526a — a statute that neither

decision cited, and which by its terms allows taxpayer suits

against only local entities or officers.

After reciting this dictum (as noted, the defendants in

Blair were not state officers), we reasonably held that former

section 526a applied and afforded taxpayer standing to sue the

county officers in that case. (Blair, supra, 5 Cal.3d at pp. 268–

269.) We proceeded to address the merits, holding the claim and

delivery law unconstitutional, and affirmed the trial court’s

judgment. (Id. at pp. 270–286.)

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 section 526a.

Yet as shown below, that is not how this passage from Blair has

been understood in subsequent decisions by this court and our

appellate courts. Instead, our dictum in Blair has been

construed as an interpretation of former section 526a, and as

reading into that statute a right of taxpayers to sue state officers

and entities to restrain and prevent asserted illegal expenditure

of public funds.

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

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plaintiffs’ standing to sue under former section 526a. We stated

in a footnote: “Although plaintiff parents bring this action

against state, as well as county officials, it has been held that

state officers too may be sued under section 526a. ([Blair, supra,

5 Cal.3d] at p. 267 . . . ; [Williams, supra,] 7 Cal.App.3d 390,

395 . . . ; [Ahlgren, supra,] 209 Cal.App.2d 248, 252–254 . . . .)”

(Serrano, at p. 618, fn. 38.)

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 section 526a, citing as sole

authority the passage in Blair, supra, 5 Cal.3d at page 268,

highlighted earlier. (Adams, at p. 151 & fn. 10.) Turning to the

merits, we held the provision violated constitutional due process

protections. (Id. at p. 157.)

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

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earlier, addressed common law taxpayer standing), and former

section 526a. (Stanson, at p. 223.) As a contemporaneous

commentator observed, in light of our decisions in Blair,

Serrano, Adams, and then Stanson: “[O]ne might conclude that

the court now reads the term ‘state’ into the list of public entities

whose officers may be sued under the section.” (Mains,

California Taxpayers’ Suits: Suing State Officers Under Section

526a of the Code of Civil Procedure (1976) 28 Hastings L.J. 477,

493.)

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

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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 section 526a statutory standing

principles in considering the standing of plaintiffs to sue

governmental entities. Various decisions have acknowledged

such dual bases, yet determined neither to be established, often

also finding the underlying claim to be not justiciable. (Torres

v. City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1046–1048;

San Bernardino County v. Superior Court (2015)

239 Cal.App.4th 679, 686; San Diegans for Open Government v.

Fonseca (2021) 64 Cal.App.5th 426, 438, fn. 6; Chodosh v.

Commission on Judicial Performance (2022) 81 Cal.App.5th

248, 268.) Other decisions have found taxpayer standing under

both the statute and common law. (California Taxpayers Action

Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115,

141 (California Taxpayers); California DUI Lawyers Assn. v.

Department of Motor Vehicles (2018) 20 Cal.App.5th 1247,

1259–1264 (California DUI Lawyers); Raju v. Superior Court

(2023) 92 Cal.App.5th 1222, 1232, 1244–1246, review granted

Sept. 13, 2023, S281001 (Raju).)

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 section 526a in 2018, in

response to our decision in Weatherford v. City of San Rafael

(2017) 2 Cal.5th 1241 (Weatherford), which addressed the type

of tax that affords standing under the statute. In that case, the

plaintiff sued a city and county, asserting that their vehicle

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impoundment enforcement practices violated state and federal

constitutional guarantees, and sought to restrain and prevent

related asserted illegal expenditure of public funds. (Id. at

p. 1245.) The plaintiff acknowledged that she “had not been

personally subject to this allegedly unconstitutional practice,”

but nevertheless claimed “she had taxpayer standing under

section 526a.” (Ibid.)

We granted review to address a question of statutory

interpretation: Whether former section 526a “require[d] the

payment of a property tax and — if the payment of a property

tax [was] not required — what types of tax payments satisf[ied]

the statute.” (Weatherford, supra, 2 Cal.5th at p. 1245, italics

added.) We held that a property tax payment suffices for

standing under former section 526a, but was not required, and

that “it [was] sufficient for a plaintiff to allege she or he has paid,

or is liable to pay, to the defendant locality a tax assessed on the

plaintiff by the defendant locality.” (Weatherford, at p. 1252.)

Chief Justice Cantil-Sakauye’s concurring opinion encouraged

the Legislature to “amend [section 526a] in a manner that

makes clear what kinds of taxes are sufficient to establish

standing to sue a particular government entity for alleged

wasteful or illegal expenditures.” (Id. at p. 1253 (conc. opn. of

Cantil-Sakauye, C. J.).)

The Legislature did exactly that. (Stats. 2018, ch. 319,

§ 1.) Amended section 526a now lists the types of taxes that

support standing. (§ 526a, subd. (a) [including, for example,

sales taxes].) It also eliminates the words “county, town, city or

city and county of the state,” and replaces them with the term

“local agency.” (Ibid.) Finally, the amended statute sets forth,

in subdivision (d), various definitions. Among them, it specifies:

“ ‘Local agency’ means a city, town, county, or city and county,

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or a district, public authority, or any other political subdivision

in the state.” (§ 526a, subd. (d).)

F. Amended Section 526a, by Its Terms, Does Not

Afford Standing to Sue the State or Its Officers

and Entities

Our decisions enlarging former section 526a to permit suit

against state officers and entities have been criticized for

“expand[ing] the [statutory] right to bring a taxpayer action to

include suit against state government” “without any real

analysis of either the statute’s legislative history or express

terms.” (Cornelius v. Los Angeles County etc. Authority (1996)

49 Cal.App.4th 1761, 1775–1776.) Likewise, respected

commentators have characterized those prior decisions as

blurring distinctions between the statutory and common law

doctrines, and as confusing, unsupported, and poorly defined.11

We find these critiques of our judicial interpretation of the

former statute well taken. So, apparently, have some Court of

Appeal decisions that have questioned the analysis in Blair and

11

Asimow et al., California Practice Guide: Administrative

Law (The Rutter Group 2022) paragraph 14:254, page 14-40,

bluntly observes that the authority we cited to support our

standing holding in Serrano, supra, 5 Cal.3d at page 618,

footnote 38, “does not support it.” (Italics added.) Moreover, the

authors conclude, “the relationship between [section] 526a and

common law taxpayer actions is confusing and poorly defined.”

(Asimow et al., Administrative Law, supra, ¶ 14:250, at p. 14-

39.) Likewise, 4 Witkin, California Procedure (6th ed. 2021)

Pleading, section 167, at page 225 observes that numerous

decisions of this court and the Courts of Appeal, both before and

after the 2018 revisions to section 526a, have “extended the

scope of [section] 526a to allow actions against state agencies

and officials, sometimes blurring the line between common law

and statutory taxpayers’ actions.”

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its progeny. (See, e.g., Los Altos, supra, 69 Cal.App.3d at p. 28

[observing that “[t]he precise language of section 526a appears

to limit its application to actions against officers of a county,

town, city, or city and county of the state,” and yet “language

contained in various Supreme Court decisions declares that the

statute is not so restricted in its application”]; accord, Vasquez,

supra, 105 Cal.App.4th at p. 854.) This absence of clarity has

understandably led subsequent appellate decisions addressing

suits against the state to employ an amalgam of statutory and

common law principles to find standing to sue such officers and

entities. (See, e.g., California Taxpayers, supra, 12 Cal.App.5th

at p. 141; California DUI Lawyers, supra, 20 Cal.App.5th at

pp. 1259–1264; Raju, supra, 92 Cal.App.5th at pp. 1244–1246,

rev. granted.)

We discern no textual support for our initial judicial

expansion of former section 526a to allow for suit against state

officers and entities. As alluded to earlier, our prior decisions

applied common law principles to support that expansion

without providing reasoned explanation for doing so, thus

sowing confusion by melding aspects of the statutory and

common law taxpayer standing doctrines. Now, the Legislature

has amended section 526a to eliminate the words “county, town,

city or city and county of the state,” to replace that phrase with

“local agency,” and to define that term as “a city, town, county,

or city and county, or a district, public authority, or any other

political subdivision in the state.” (Id., subd. (d)(1), as amended

by Stats. 2018, ch. 319, § 1.) By this amendment, the

Legislature has made it clear that the statute confers standing

to sue only local, and not state governmental officers and

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entities.12 Accordingly, we hold that section 526a, as amended

in 2018, does not afford standing to sue state entities or officials

to restrain and prevent asserted illegal expenditure of public

funds.

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.

As we have observed, standing is jurisdictional and “must

exist at all times until judgment is entered and not just on the

date the complaint is filed.” (Californians for Disability Rights

v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 233.) Yet in light of the

highly unusual posture and circumstances of the present case,

were we to conclude that we lack jurisdiction to address the

Court of Appeal’s analysis and judgment invalidating the

12

As shown earlier, the history of the 2018 amendment

reveals that the Legislature intended to clarify the law

concerning standing to sue local entities under the statute. At

the same time, however, the same history reflects no indication

that the Legislature focused on the fact that the former statute

had long previously been judicially interpreted to permit suits

against state officers or entities — that is, officers such as the

Governor, and various state entities such as the Department of

Motor Vehicles. If the Legislature had focused on and desired

to maintain the prior broad interpretation of former section

526a, it seems unlikely that it would have specified that the

statute authorizes suits against those representing a “local

agency,” and provided a specific definition of “local agency” that

implicitly excludes the state — while at the same time failing to

affirm that a state officer or entity may be sued under the

statute.

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challenged provision for assertedly restricting more speech than

necessary to achieve the state’s compelling interest, a cloud over

the constitutionality of the statute — a significant matter of

public interest — would continue to loom. Such a

determination, unaccompanied by any ruling on the merits by

this court explaining why the Court of Appeal below erred when

announcing its reason for invalidating the challenged provision

on its face, would impair the administration of justice, leaving

the State uncertain whether it is free to enforce the statute, and

those who view the statute as unconstitutional but wish to

engage in conduct that violates it would be uncertain whether

they are free to do so.

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. (Cal. Const., art. VI, § 12, subd. (b);

cf. Dix v. Superior Court (1991) 53 Cal.3d 442, 454 & fn. 8

[exercising discretion to consider the merits of a petitioner’s

claims notwithstanding the absence of standing].) In Dix, we

concluded both that the “Court of Appeal erred in ruling that

petitioner has standing to challenge the recall of [a specific

inmate’s] sentence,” and acknowledged that “[n]othing more

[was] necessary to our holding that the judgment must be

reversed with directions to dismiss the mandamus action.” (Id.

at p. 454.) Nevertheless, “we deem[ed] it appropriate to address

petitioner’s sentencing arguments for the guidance of the lower

courts,” and exercised our discretion to do so. (Ibid.)

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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 section 526a, as it deems warranted.

III. PLAINTIFF’S FACIAL

CONSTITUTIONAL CHALLENGES TO

THE PRONOUNS PROVISION

Plaintiff challenges the pronouns provision on its face

under the United States Constitution’s First Amendment, which

prohibits enforcement of laws “abridging the freedom of speech.”

(U.S. Const., 1st Amend.)

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.)

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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.

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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 First Amendment rights. (Id. at

p. 162.) The trial court rejected the challenge and the appellate

court affirmed, finding the law content neutral, and upholding

it under intermediate scrutiny. (Id. at pp. 162–163.)

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. 712–716.) The State disagrees. It argues

that despite the high court’s language in Reed, supra, 576 U.S.

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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 to all contexts in which words are voiced — to courts and

care facilities no less than streets and sidewalks.” They assert

that the challenged pronouns provision does not regulate public

discourse, but only “verbal conduct outside the marketplace of

ideas, in a place — at once a workplace, a public accommodation,

a medical care facility, and a place of residence — where LGBT

seniors are a uniquely captive audience.” Yet, they argue, even

if the statute is viewed as reaching “a mix of protected speech

and unprotected speech or conduct, strict scrutiny would still be

the wrong framework to employ. Instead, an overbreadth

analysis would then be required.”

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.

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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, Health and Safety Code section 1439.51,

subdivision (a)(5) is subject to strict scrutiny analysis under the

First Amendment, and that it fails. We conclude that Reed and

its First Amendment strict scrutiny analysis does not apply

here.

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

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prohibition is limited to willful, repeated, knowing acts done

because of a protected characteristic.

In this setting, and pursuant to relevant authority

discussed below governing public accommodations and anti-

discrimination laws that prohibit acts that create hostile

environments while only incidentally affecting speech, we

conclude the First Amendment presents no obstacle. As we

explain, the challenged pronouns provision regulates speech

only indirectly, by prohibiting, analogously to Title VII,13

conduct that amounts to harassment or discrimination.

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 First Amendment

challenge to a city’s bias-motivated crime ordinance, which

prohibited the display of a burning cross or other symbol that an

individual “ ‘knows or has reasonable grounds to know arouses

anger, alarm or resentment in others on the basis of race, color,

creed, religion or gender.’ ” (R. A. V., at p. 380.) The state

supreme court had construed the statute to reach only fighting

words and had further concluded that it was not overbroad and

withstood strict scrutiny. (Id. at pp. 380–381.) The high court

reversed, finding that the statute was a content-based

regulation that failed strict scrutiny. (Id. at pp. 395–396.)

Significantly for our purposes, in doing so the court articulated

13

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e

et seq.; Title VII).

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an important caveat: Laws regulating conduct may

constitutionally prohibit discriminatory speech, despite

according “differential treatment to . . . a content-defined

subclass” of speech. (Id. at p. 389.)

The high court explained that the First Amendment’s

“prohibition against content discrimination . . . is not absolute.”

(R. A. V., supra, 505 U.S. at p. 387.)14 The Court analogized to

“Title VII’s general prohibition against sexual discrimination in

employment practices, 42 U.S.C. § 2000e-2” as an example of a

statute that permissibly targets conduct, rather than speech.

(R. A. V., at p. 389.) The R. A. V. court observed that “sexually

derogatory ‘fighting words,’ among other words, may produce a

violation of Title VII’s general prohibition against sexual

discrimination in employment practices.” (Ibid.)15

14

One exception the court recognized as a “valid basis for

according differential treatment to even a content-defined

subclass of proscribable speech” applies when “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.’ ” (R. A. V., supra, 505 U.S. at

p. 389, italics omitted.) The court observed that because “words

can in some circumstances violate laws directed not against

speech but against conduct . . . , a particular content-based

subcategory of a proscribable class of speech can be swept up

incidentally within the reach of a statute directed at conduct

rather than speech.” (Ibid.)

15

The court declined, however, to view discriminatory

speech as categorically immune from First Amendment

scrutiny. Indeed, the court concluded that in the matter before

it, the statute was not one directed at conduct rather than

speech. Instead, the court found, the statute at issue constituted

“content discrimination” — and hence an unconstitutional

abridgment of freedom of speech under the particular

circumstances of that case. (R. A. V., supra, 505 U.S. at p. 391.)

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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 First Amendment challenge similar to the

one plaintiff raises here. Pointing to the “statement in

R. A. V. . . . that harassing speech that is sufficiently severe or

pervasive to constitute employment discrimination is not

constitutionally protected” (Aguilar, at p. 137 (plur. opn.)), the

plurality upheld an injunction barring a manager who worked

for Avis from continuing to violate the FEHA by using certain

“ ‘derogatory racial or ethnic epithets’ ” (Aguilar, at p. 128 (plur.

opn.)) to target the agency’s Hispanic employees in the

workplace. Our decision was announced in a plurality opinion

by Chief Justice George (id. at pp. 126–147 (plur. opn.)) and a

separate opinion by Justice Werdegar, who concurred in

substantial part (id. at pp. 147–169 (conc. opn. of Werdegar, J.)).

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 First Amendment.” (Aguilar,

supra, 21 Cal.4th at pp. 141–142 (plur. opn. of George, C. J.); see

also id. at p. 134 (plur. opn.) [“[a] statute that is otherwise valid,

and is not aimed at protected expression, does not conflict with

the First Amendment simply because the statute can be violated

by the use of spoken words or other expressive activity”].) In

relevant part, the plurality drew upon R. A. V., supra, 505 U.S.

377, and related high court case law concerning Title VII

employment discrimination, specifically, the hostile

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environment context (Harris v. Forklift Systems, Inc. (1993)

510 U.S. 17 (Harris); Meritor Savings Bank v. Vinson (1986)

477 U.S. 57 (Meritor)), all of which had analyzed anti-

discrimination laws as permissible regulations of discriminatory

conduct, rather than protected speech amenable to First

Amendment scrutiny. In light of these opinions, the plurality

summarized: “[T]he United States Supreme Court has held that

the use of racial epithets that is sufficiently severe or pervasive

constitutes ‘employment discrimination’ in violation of Title VII

[citations] and these decisions are at least implicitly

inconsistent with any suggestion that speech of this nature is

constitutionally protected.” (Aguilar, at pp. 134–135 (plur. opn.

of George, C. J.).) Indeed, the plurality concluded, these high

court decisions make it “clear . . . that the First Amendment

permits imposition of civil liability for past instances of pure

speech that create a hostile work environment,” and, as applied

in the circumstances then before us, permit imposition of

liability for “spoken words [that], either alone or in conjunction

with conduct, amount to employment discrimination.” (Id. at

pp. 135, 134 (plur. opn.).) Accordingly, the plurality did not find

First Amendment scrutiny to be appropriate. (Aguilar, at

pp. 133–137 (plur. opn.).) Rather, it viewed the “sole issue in

the present case [as] whether the First Amendment” allows not

only “imposition of civil liability for past instances of pure

speech that create a hostile work environment,” but also “the

issuance of an injunction to prohibit the continuation of such

discriminatory actions.” (Id. at p. 135 (plur. opn.).)

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

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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 First Amendment rights.” (Id. at p. 141 (plur. opn.).)

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 First Amendment scrutiny. In its view, the

“captive” nature of employees in the workplace, paired with

alternative avenues for voicing discriminatory beliefs, rendered

the prohibition akin to a content-neutral regulation. (Aguilar,

supra, 21 Cal.4th at p. 159 (conc. opn. of Werdegar, J.).) The

concurrence observed that “strong public policies governing the

workplace — both private and public — may justify some

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limitations on the free speech rights of employers and

employees,” and stressed “the reality that workplaces and

jobsites are not usually thought of as marketplaces for the

testing of political and social ideas.” (Id. at pp. 158–159 (conc.

opn. of Werdegar, J.).) The concurrence emphasized that the

injunction protected employees who were not “reasonably free to

walk away when confronted with . . . racial slurs” at work. (Id.

at pp. 160–161 (conc. opn. of Werdegar, J.).) It also found that

the employees’ “status as forced recipients of [the defendant

manager’s] speech lends support to the conclusion that

restrictions on [the manager’s] speech are constitutionally

permissible in the circumstances at hand, where the regulation

of speech is limited solely to the workplace and the offended

recipients constitute a captive audience.” (Id. at p. 162 (conc.

opn. of Werdegar, J.).) Because “ample alternatives for

advocating, espousing or simply stating” discriminatory beliefs

existed, the concurrence viewed the injunction as “analogous to

a permissible time, place and manner restriction on speech.”

(Id. at pp. 164, 162 (conc. opn. of Werdegar, J.).)16

16

The concurring opinion acknowledged that “[t]he Supreme

Court’s existing time, place and manner decisions admittedly do

not wholly govern this case, for not only does this case not

involve a public forum, the injunction here is not content-

neutral.” (Aguilar, supra, 21 Cal.4th at p. 164 (conc. opn. of

Werdegar, J.).) The concurrence concluded, however, that

“[w]hether the content-based nature of the injunction wholly

disqualifies the time, place and manner doctrine from any

application to this case need not be decided.” (Id. at p. 165 (conc.

opn. of Werdegar, J.).) It reasoned that when the components of

that doctrine — “a compelling state interest and alternative

channels of communication — are considered together with the

facts [that] the speech sought to be enjoined occurred in the

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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 merely because

the conduct was in part initiated, evidenced, or carried out by

means of language, either spoken, written, or printed.’ ” (Ibid.,

quoting Giboney v. Empire Storage & Ice Co. (1949) 336 U.S.

490, 502.) Were it overwise, a “law against treason” could not

restrict “telling the enemy the Nation’s defense secrets”

(R. A. V., supra, 505 U.S. at p. 389); an “ordinance against

outdoor fires” could not prohibit “burning a flag” (id. at p. 385);

and antitrust laws would be helpless against “ ‘agreements in

restraint of trade.’ ” (Sorrell v. IMS Health Inc. (2011) 564 U.S.

552, 567, quoting Giboney, at p. 502.)

In other words, the high court has clarified, “acts are not

shielded from regulation merely because they express a

workplace and the recipients of the unwelcome speech were a

captive audience, a strong case for upholding the injunction

appears.” (Ibid.)

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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. Health and Safety Code section 1439.51,

subdivision (a)(5) targets discriminatory conduct by prohibiting

acts that would create a hostile environment in a long-term care

facility — thereby facilitating the ability of such residents to

obtain long-term medical and related intimate personal care in

an environment that is conducive to, and does not undermine,

such care.

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. (Health & Saf. Code, § 1439.51,

subd. (a)(5).)17 Yet we interpret statutory provisions in context,

17

In light of this statutory language, we reject the Court of

Appeal’s characterization of the challenged statute as

impermissibly penalizing “occasional, isolated, off-hand

instances of willful misgendering.” (Taking Offense, supra,

66 Cal.App.5th at p. 720.) Moreover, the “common

understanding” of the word “ ‘repeatedly’ ” is “more than one

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not in isolation. (Dyna-Med, Inc. v. Fair Employment & Housing

Com. (1987) 43 Cal.3d 1379, 1387 [provisions “relating to the

same subject must be harmonized, both internally and with each

other, to the extent possible”].) So viewed, the challenged

regulation is simply one aspect of an overall legislative scheme

directed at barring various forms of discriminatory conduct in

the unique long-term care facility setting. As further explained

post, part III.D.4.a., the regulation’s placement in a long list of

provisions that limit specific “actions” of “long-term care

facility . . . staff” (Health & Saf. Code, § 1439.51, subd. (a))

reveals the Legislature’s intent to address such related conduct

by facility staff. The fact that one subpart of the statute can be

violated by spoken words “hardly means that the law should be

analyzed as one regulating [the employees’] speech rather than

conduct.” (Rumsfeld, supra, 547 U.S. at p. 62.)

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

time.” (People v. Heilman (1994) 25 Cal.App.4th 391, 400;

People v. Ibarra (2007) 156 Cal.App.4th 1174, 1197 [“ ‘More than

once’ is a dictionary definition of the word”].) But just as within

the context of enforcing Title VII, or the federal Fair Housing

Act (FHA; 42 U.S.C. §§ 3601–3619), or our state’s FEHA,

“[t]here is no ‘magic number of instances’ that must be endured

before an environment becomes so hostile that the occupant’s

right . . . has been violated.” (Wetzel v. Glen St. Andrew Living

Cmty., LLC (7th Cir. 2018) 901 F.3d 856, 862 [federal FHA

claim].)

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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 Health and Safety Code section 1439.51,

subdivision (a)(5)’s prohibition, in the context of long-term care

facilities, of “[w]illfully and repeatedly fail[ing] to use a

resident’s preferred name or pronouns after being clearly

informed of the preferred name or pronouns” constitutes a

proper regulation analogous to Title VII’s prohibition of a hostile

work environment.18 We need not analyze the boundaries of

impermissible harassment and discrimination under the First

Amendment because the challenged provision regulates

conduct — that is, discriminatory “actions [taken] wholly or

partially on the basis of a person’s actual or perceived . . . gender

identity . . . [or] gender expression” (Health & Saf. Code,

§ 1439.51, subd. (a))19 — corresponding to Title VII’s

prohibition, and hence reflects the sphere of conduct that the

high court has deemed constitutionally proscribable. Indeed,

the proscription at issue arises not merely in the workplace, but

simultaneously in a special residential setting in which those

whom the statute seeks to protect are both particularly unlikely

to be able to avoid the unwanted conduct and particularly in

danger of being harmed by it.

18

Because subdivision (a)(5) of Health and Safety Code

section 1439.51 is the sole provision at issue in this litigation,

we address only the proper reading of that subdivision. We take

no position concerning the proper interpretation of other aspects

of section 1439.51.

19

We construe “on the basis of,” as used in the statute, as

synonymous with “ ‘because of.’ ” (Cf. Franklin v. Gwinnett

County Public Schools (1992) 503 U.S. 60, 75.)

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3. Overview of hostile environment doctrine under

existing anti-discrimination laws and related

authority concerning workplaces, homes, and

medical settings relevant in the long-term care

setting

Title VII bars discrimination in the “terms, conditions, or

privileges of employment” (42 U.S.C. § 2000e-2(a)(1)) and

creates a cause of action with respect to harassment that is

“sufficiently severe or pervasive ‘to alter the conditions of [the

victim’s] employment and create an abusive working

environment.’ ” (Meritor, supra, 477 U.S. at p. 67.) The statute

reaches harassment that is (1) “severe or pervasive enough to

create an objectively hostile or abusive work environment — an

environment that a reasonable person would find hostile or

abusive” (judged from the perspective of a reasonable person in

the plaintiff’s position), (2) when the victim “subjectively

perceive[s] the environment to be abusive.” (Harris, supra,

510 U.S. at p. 21; see also Oncale v. Sundowner Offshore

Services, Inc. (1998) 523 U.S. 75, 81 (Oncale).)

“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 Title

VII. (See Harris, at pp. 20, 21 [reversing and remanding a

district court decision holding that derogatory comments on the

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basis of sex did not create an abusive environment because they

were not “ ‘so severe as to be expected to seriously affect [the

plaintiff’s] psychological well-being’ ” and did not cause

“tangible psychological injury”]; Nichols v. Azteca Restaurant

Enterprises, Inc. (9th Cir. 2001) 256 F.3d 864, 870, 874 [finding

that a “relentless campaign of insults, name-calling, and

vulgarities” toward a worker due to his “fail[ure] to conform to

a male stereotype” constituted a hostile environment].) The

captive audience context of a workplace heightens the

possibility that “spoken words, either alone or in conjunction

with conduct . . . [can] amount to employment discrimination.”

(Aguilar, supra, 21 Cal.4th at p. 134 (plur. opn. of George,

C. J.).)

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. 22.) Stated differently, the subjective harm required to find

a hostile environment need not be “egregious.” (Ibid.) 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

20

See also California Code of Regulations, title 2, section

12120, subdivision (a)(3)(ii) (“Neither psychological nor physical

harm must be demonstrated to prove that a hostile environment

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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.

(42 U.S.C. §§ 3601–3619; Beliveau v. Caras (C.D.Cal. 1995)

873 F.Supp. 1393, 1396–1397 (Beliveau) [canvassing cases

applying a hostile environment framework concerning the

FHA]; Gov. Code, §§ 12900 et seq. [FEHA], 12927, subd. (c)(1)

[defining “ ‘[d]iscrimination’ ” as “includ[ing] harassment in

connection with . . . housing accommodations”]; Brown v. Smith

(1997) 55 Cal.App.4th 767, 783–784 [applying the standard set

out in Harris, supra, 510 U.S. at p. 23, in reviewing a claim of

sexual harassment under the FEHA].)

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

existed or exists. Evidence of psychological or physical harm

may, however, be relevant in determining whether a hostile

environment exists or existed, as well as the amount of damages

to which an aggrieved person may be entitled”).

21

See Montano v. Bonnie Brae Convalescent Hosp., Inc.

(C.D.Cal. 2015) 79 F.Supp.3d 1120, 1125 (treating a skilled

nursing facility as a covered entity under the FEHA because

“ ‘[t]o the handicapped elderly persons who would reside there,

[the facility] would be their home, very often for the rest of their

lives’ ”).

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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].)

Likewise, and equally salient in the present setting, the

high court has reasoned that the medical care setting also is a

captive audience environment and it has upheld challenges to

laws affecting speech in that context as well. (Madsen v.

Women’s Health Center, Inc. (1994) 512 U.S. 753, 768–773

[upholding restriction on picketing and related activity outside

a health clinic that performed abortions]; Hill v. Colorado (2000)

530 U.S. 703, 715–718, 729 [upholding a criminal statute that

prohibited knowingly approaching within eight feet of another

person near a health care facility, without the other person’s

consent, for the purpose of leafleting, protesting, or counseling

any other person].) As discussed below, those living in facilities

regulated by the challenged statute, and whom the Legislature

has sought to protect, present a paradigmatic example of a

captive audience.

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 Health and

Safety Code section 1439.51, subdivision (a)(5), intended,

consistent with Title VII jurisprudence, to proscribe harassment

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in the long-term care setting in the form of “repeated[]” acts of

misgendering that are severe or pervasive enough to create an

objectively hostile environment and that necessarily would be

“subjectively perceive[d] . . . to be abusive” (Harris, supra,

510 U.S. at p. 21) because they were “[w]illfully” committed

despite “clear[]” and prior notice “of the preferred name or

pronouns,” “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.”

(Health & Saf. Code, § 1439.51, subd. (a)(5).)

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

Health and Safety Code section 1439.51, subdivision (a)(5) is

intended to target a particularly pernicious form of harassment

aimed at a vulnerable captive audience. Viewed in this light,

the willful and repeated misgendering of a long-term care

resident by those employed to provide such care may well create

an “environment that a reasonable person would find hostile or

abusive” (Harris, supra, 510 U.S. at p. 21), judged “from the

perspective of a reasonable person in the [resident’s] position”

(Oncale, supra, 523 U.S. at p. 81). LGBT seniors who “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,” could reasonably perceive that willful and repeated

misgendering by their caretakers creates a hostile or abusive

environment. (Stats. 2017, ch. 483, § 1, subd. (b).)

As observed ante, part I.A., the Legislature enacted

Health and Safety Code section 1439.51, subdivision (a)(5) as

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part of a comprehensive scheme designed to counteract risks

that LGBT residents in long-term care residential facilities

would face particularly invasive discriminatory conduct. The

challenged regulation is found along with other provisions that

limit myriad specific “actions” of “long-term care facility or

facility staff.” (Health & Saf. Code, § 1439.51, subd. (a).) In this

way the statute clarifies prohibited conduct undertaken “wholly

or partially on the basis of a person’s actual or perceived sexual

orientation, gender identity, [or] gender expression” (ibid.,

italics added), including “refusing to assign a room to a

transgender resident,” “[p]rohibit[ing] a resident from using . . .

a restroom available to other persons of the same gender

identity,” and “[w]illfully and repeatedly fail[ing] to use a

resident’s preferred name or pronouns after being clearly

informed of the preferred name or pronouns” (id., subd. (a)(3),

(4) & (5)). The other prohibited actions listed within subdivision

(a), most of which do not implicate speech, include “[d]eny[ing]

admission,” “[d]eny[ing] a request by residents to share a room,”

“[d]eny[ing] a resident the right to wear or be dressed in

clothing . . . permitted for any other resident,” “[r]estrict[ing] a

resident’s right to associate with other residents,” and

“[d]eny[ing] or restrict[ing] medical or nonmedical care.” (Id.,

subd. (a)(1), (2), (6), (7) & (8).)

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

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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 Health and Safety Code section

1439.51, subdivision (a)(5) similarly evinces concern about the

impact of discriminatory conduct in “long-term care facilities

where residents are particularly vulnerable.” (Stats. 2017,

ch. 483, § 1, subd. (b).) Like hostile housing environment claims

under both our FEHA and the federal FHA, harassment in long-

term care facilities — home to residents therein — is especially

harmful due to its invasive impact on a captive audience seeking

medical treatment and / or intimate personal care. (See, e.g.,

Salisbury v. Hickman (E.D.Cal. 2013) 974 F.Supp.2d 1282, 1292

[“Courts have recognized that harassment in one’s own home is

particularly egregious and is a factor that must be considered in

determining the seriousness of the alleged harassment”];

Beliveau, supra, 873 F.Supp. at p. 1397, fn. 1 [harassment in the

home is “more oppressive” because whereas a worker may decide

to exit the workplace, one cannot so easily avoid harassment in

one’s domicile].)

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,

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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 . . .

22

Justice in Aging et al., Stories from the Field: LGBT Older

Adults in Long-Term Care Facilities (2010, updated 2015) at

pages 8–17 <https://justiceinaging.org/wp-

content/uploads/2015/06/Stories-from-the-Field.pdf> (as of

Nov. 6, 2025) (all Internet citations in this opinion are archived

by year, docket number and case name at

<https://courts.ca.gov/opinions/cited-supreme-court-opinions>);

cf. Medina et al., Center For American Progress, Protecting and

Advancing Health Care for Transgender Adult Communities

(Aug. 18, 2021) figure 13, at

<https://www.americanprogress.org/article/protecting-

advancing-health-care-transgender-adult-communities/> (as of

Nov. 6, 2025) [finding that 32 percent of transgender

respondents — and 46 percent of transgender respondents of

color — reported that in the prior year, a doctor intentionally

used the wrong name when addressing or referring to them];

Fasullo et al., LGBTQ Older Adults in Long-Term Care Settings:

An Integrative Review to Inform Best Practices (2022) 45 Clinical

Gerontologist 1087, 1090–1093.

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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

23

See 42 Code of Federal Regulations part 483.10(a)(1)

(2025); see also id., part 483.10(a) (a resident has a “right to a

dignified existence . . . [and] self-determination”), (e) (2025) (a

resident has the “right to be treated with respect and dignity”).

24

Centers for Medicare and Medicaid Services, United

States Department of Health and Human Services, Revisions to

State Operations Manual, Appendix PP, Guidance to Surveyors

for Long Term Care Facilities (Rev. No. 229, Apr. 25, 2025)

F550, GUIDANCE § 483.10(a)–(b)(1) & (2) at

<https://www.cms.gov/files/document/r229soma.pdf> (as of

Nov. 6, 2025).

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, including discrimination in gender

affirmation, is associated with higher odds of suicidal ideation,

psychological distress, and substance abuse.” (Accord, e.g.,

Vigny-Pau et al., Suicidality and Non-Suicidal Self-Injury

Among Transgender Populations: A Systematic Review (2021)

25 J. of Gay & Lesbian Mental Health 358, 367; Seelman et al.,

Transgender Noninclusive Healthcare and Delaying Care

Because of Fear: Connections to General Health and Mental

Health Among Transgender Adults (2017) 2 Transgender

Health 17, 25–26; Adams & Vincent, Suicidal Thoughts and

Behaviors Among Transgender Adults in Relation to Education,

Ethnicity, and Income: A Systematic Review (2019)

4 Transgender Health 226, 237–238.) Conversely, the same

amici curiae relate that “the use of the affirmed names and

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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 Health and Safety Code section

1439.51, subdivision (a)(5) will be violated when willful and

repeated misgendering has occurred in the presence of a

resident, the resident hears or sees the misgendering, and the

resident is harmed because the resident perceives that conduct

to be abusive. Similarly, the provision will be violated (and

harm to a resident established) when there is evidence that a

resident who did not personally hear willful and repeated

misgendering nevertheless has become aware from others

(residents, staff, or visitors) that, for example, a particular staff

person has so misgendered that resident elsewhere within the

facility’s grounds, or otherwise in conjunction with that person’s

job-related role, thus leading that resident to perceive both that

misgendering and its abusive nature. We find this

understanding of the statute’s scope to be consistent with the

Legislature’s apparent intent reflected in its findings

(Stats. 2017, ch. 483, § 1, subds. (a)–(e)), with the accompanying

pronouns of transgender persons is associated with fewer

depressive symptoms and less suicide ideation, suicidal

behavior, and psychological distress.” (See The Trevor Project,

National Survey on LGBTQ Youth Mental Health 2020

Supporting Transgender & Nonbinary Youth, at

<https://www.thetrevorproject.org/wp-content/uploads/2020/07/

The-Trevor-Project-National-Survey-Results-2020.pdf> [as of

Nov. 6, 2025]; cf. Chosen Name Use, at p. 505.)

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legislative history mentioned earlier, and with the high court’s

admonition in Harris, supra, 510 U.S. at page 23, that courts

must consider “all the circumstances” in analogous contexts.25

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 Health and

Safety Code section 1439.51, subdivision (a)(5), suggests that it

was intended to reach, or that it does reach, “all forms of speech

in all contexts whatsoever.” (Italics added.) The provision is

carefully calibrated and does not reach conduct or expression

that occurs outside the campus of a long-term residential care

facility, and which also is outside the business-related role of its

staff. So viewed, the provision generally leaves long-term care

staff members free to express their views about gender in any

otherwise lawful manner, and it allows such persons to express

25

Indeed, employment law decisions by federal courts have

found that harassing conduct occurring outside a plaintiff’s

presence, but about which a plaintiff becomes aware, can

contribute to a plaintiff’s perception of a hostile work

environment. (E.g., Davis v. Team Elec. Co. (9th Cir. 2008)

520 F.3d 1080, 1095 [“Offensive comments do not all need to be

made directly to an employee for a work environment to be

considered hostile”].)

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such viewpoints elsewhere outside the workplace, including in

their own “home[s], on the sidewalk, in the park, in [a]

restaurant or on the Internet.” (Aguilar, supra, 21 Cal.4th at

p. 164 (conc. opn. of Werdegar, J.).)26

E. Decisions in the Compelled Speech and

Associational Contexts Finding Exceptions to

the General Rule That Discriminatory Conduct

Is Constitutionally Unprotected Are

Inapplicable Here

The United States Supreme Court has applied First

Amendment scrutiny to public accommodations and anti-

discrimination statutes in certain circumstances that are

26

When an act of misgendering results in the disclosure of a

resident’s private medical information, that act may constitute

a violation of federal and / or related state medical privacy

statutes. (See Health & Saf. Code, § 1439.53, subd. (a) [“Long-

term care facilities shall protect personally identifiable

information regarding residents’ sexual orientation, [and]

whether a resident is transgender . . . from unauthorized

disclosure”]; ibid. [clarifying that this rule applies to the extent

nondisclosure of such private medical information is “required”

by existing federal and state rights to privacy under “the federal

Health Insurance Portability and Accountability Act of 1996

(42 U.S.C. Sec. 300gg), if applicable, the Confidentiality of

Medical Information Act (Part 2.6 (commencing with Section 56)

of Division 1 of the Civil Code), if applicable, regulations

promulgated thereunder, if applicable, and any other applicable

provision of federal or state law”]; see also Cal. Const., art. I, § 1

[right of privacy]; Hill v. National Collegiate Athletic Assn.

(1994) 7 Cal.4th 1, 35 [“[i]nformational privacy is the core value

furthered” by the provision]; County of Los Angeles v. Superior

Court (2021) 65 Cal.App.5th 621, 641–642 [addressing patients’

privacy rights concerning their medical records in doctors’

files].)

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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

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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 statute found that compelled association

would “send a message, both to the youth members and the

world” about the organization’s own beliefs. (Id. at p. 653.)27

By contrast, the present case does not involve any

analogous creative product or expressive association as in 303

Creative and Hurley. As previously described, Health and

Safety Code section 1439.51, subdivision (a)(5) targets

discriminatory conduct aimed at vulnerable seniors who need to

reside in long-term care facilities — and are hence a captive

audience — in order to acquire intimate personal care and

related medical treatment. The provision seeks to render the

long-term care environment conducive to such care and

treatment. Unlike the situation presented in 303 Creative, the

challenged provision does not implicate a traditional

marketplace of ideas setting or regulate a commercial context

involving the production of original, customized creations that

express the creator’s own message. Nor, as in Hurley and Boy

Scouts, does the provision implicate compelled membership or

inclusion in a private expressive association.

We view such high court decisions as reflecting context-

specific applications of First Amendment principles. Such

27

The court later clarified that Boy Scouts is inapplicable

when a statute “does not force [an organization] to ‘ “accept

members it does not desire,” ’ ” and explained that a “speaker

cannot ‘erect a shield’ against laws requiring access ‘simply by

asserting’ that mere association ‘would impair its message.’ ”

(Rumsfeld, supra, 547 U.S. at p. 69.)

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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

Title VII, to First Amendment scrutiny. Nothing in 303

Creative, Hurley, or Boy Scouts suggests that the anti-

discrimination law reflected in Health and Safety Code section

1439.51, subdivision (a)(5) should be subjected to the kind of

First Amendment scrutiny found to be warranted in those cases.

F. The Recent Decision in Free Speech Coalition

After oral argument in this matter, the United States

Supreme Court filed 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 users of such websites are at least

18 years old. The court rejected the petitioners’ contention that

the law was a content based measure subject to strict scrutiny

under Reed, supra, 576 U.S. at page 163 and related decisions.

(Free Speech Coalition, supra, 606 U.S. at p. 482.) Yet the court

also rejected the state’s assertion that because the law regulates

obscene speech that minors have no right to access, the statute

is subject to mere rational basis review. (Id. at p. 495.)

Although the court concluded that the statute regulated

“unprotected” speech insofar as it sought to prevent minors from

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accessing speech that they have no right to view (id. at p. 482),

it determined the law was subject to intermediate scrutiny

because it had an incidental burden on protected speech —

namely, the right of adults “to access speech that is obscene only

to minors.” (Ibid.; see also id. at p. 495.) The court further

concluded that the statute satisfied intermediate scrutiny by

“ ‘advanc[ing] important governmental interests unrelated to the

suppression of free speech and . . . not burden[ing] substantially

more speech than necessary to further those interests.’ ” (Id. at

pp. 495–496, italics added.)28

In the present case, the challenged provision, Health and

Safety Code section 1439.51, subdivision (a)(5), is not a

regulation of “unprotected activity” that incidentally burdens

“protected activity” (Free Speech Coalition, supra, 606 U.S. at

p. 492, italics added.) Instead, although the statute applies to

spoken words, it prohibits only unprotected conduct — i.e.,

repeated misgendering that amounts to discrimination

proscribable under well-established law. As the State observes,

staff at long term-care facilities have “no protected right to

engage in harassment and abuse of residents as a means to

28

In reaching this conclusion, the Free Speech Coalition

decision noted the importance of protecting minors from

sexually explicit content and the minimal burden that age

verification posed to adults. Under intermediate scrutiny, “The

regulation ‘need not be the least restrictive . . . means of’ serving

the State’s interest. [Citation.] And, the regulation’s validity

‘ “does not turn on [our] agreement with the [legislature]

concerning the most appropriate method for promoting

significant government interests” or the degree to which those

interests should be promoted.’ ” (Free Speech Coalition, supra,

606 U.S. at p. 496.)

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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 Unruh Civil Rights Act (Civ. Code, § 51 et seq.),

the California Fair Employment and Housing Act (FEHA) (Gov.

Code, § 12900 et seq.), and Title VII of the Civil Rights Act of

1964 (42 U.S.C. § 2000e et seq.) — permissibly regulate

discriminatory conduct and do not necessitate any heightened

scrutiny. We decline to read Free Speech Coalition as silently

undermining or overruling the high court’s own

pronouncements, including in R. A. V., supra, 505 U.S. 377, that

we have relied upon and applied ante, part III.D.

Assuming, for argument’s sake, that Free Speech Coalition

bears on the present matter, the high court’s recent opinion

would support our determination that strict scrutiny is

inapplicable in this context. In explaining why strict scrutiny

analysis was not required in the setting under consideration, the

court repeatedly described age-verification laws for accessing

pornography as “traditional [and] widespread” (Free Speech

Coalition, supra, 606 U.S. at p. 485; see also id. at, e.g., pp. 485,

493), and relied on that history in declining to “adopt a position

that would call into question the constitutionality of [such]

longstanding . . . requirements.” (Id. at p. 494.) Likewise, in the

present case, the challenged statute’s prohibition on willful and

repeated misgendering is, as the State observes, “materially

indistinguishable from nondiscrimination and harassment

laws” that have long been “commonplace at the federal, state,

and local levels.” Free Speech Coalition counsels that we should

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avoid any rigid mode of inquiry that would call into question the

constitutionality of longstanding anti-discrimination and hostile

environment statutes. (Ibid. [“A decision ‘contrary to long and

unchallenged practice . . . should be approached with great

caution’ ”].)

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 Health and

Safety Code section 1439.51, subdivision (a)(5)’s misgendering

provision is modest, and reasonably characterized as incidental.

The statute applies only to willful and repeated misgendering

that creates a hostile environment in the long-term care setting,

and preserves “ample alternative channels of communication.”

(Aguilar, supra, 21 Cal.4th at p. 164 (conc. opn. of Werdegar,

J.).) In doing so the provision “ ‘advances important

governmental interests unrelated to the suppression of free

speech.’ ” (Free Speech Coalition, at pp. 495–496.)

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

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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.’ ” (Free Speech Coalition,

supra, 606 U.S. at p. 496.) Under intermediate scrutiny, the

state need not show that a regulation is the least restrictive way

to achieve its interest. (Ibid.; see ante, fn. 28.) As previously

described, the provision is limited to willful, repeated, and

knowing acts done on the basis of a protected characteristic, and

it applies only in the regulation of those whose job is to provide

intimate personal and medical care to long-term care residents.

The provision does not prevent facility staff from expressing

their views about gender in any otherwise lawful manner.

Moreover, the statute reaches solely conduct that creates a

hostile environment. Accordingly, the provision “ ‘does not

burden substantially more speech than is necessary to further’ ”

the state’s important interest. (Free Speech Coalition, at p. 496.)

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 Health & Saf. Code, § 1439.54, quoted ante, fn. 5; Health &

Saf. Code, §§ 1290, subd. (c) [governing violations of chs. 2,

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concerning “Health Facilities,” and 2.4, concerning “Long-Term

Health Facilities”], 1569.40, subd. (a) [governing violations of

ch. 3.2, concerning “Residential Care Facilities for the

Elderly”].) Contrary to plaintiff’s contention, the circumstance

that enforcement could, in an outlier case, potentially involve

criminal penalties does not call for invalidation of the challenged

pronouns provision in this facial challenge.

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 Health

and Safety Code section 1439.51, subdivision (a)(5) cannot be

viewed as “the least restrictive means to accomplish” the state’s

objectives in this case, and plaintiff suggests the provision

should be invalidated on its face for this reason. In addressing

plaintiff’s objection to the prospect of criminal prosecution and

penalties, the Court of Appeal rejected the notion that civil

penalties are, by their very nature, a less restrictive means of

enforcement. (Taking Offense, supra, 66 Cal.App.5th at p. 720.)

Yet, as noted earlier, the appellate court ultimately determined

that whether enforced through either civil or criminal penalties,

the statute is insufficiently narrowly tailored (ibid.), and it

faulted the enactment for “criminalizing” more speech than

“necessary to advance [its legitimate] goal.” (Id. at p. 721.)

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

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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 Health and Safety Code

section 1439.54 as its mechanism to enforce the LGBT Long-

Term Care Residents’ Bill of Rights. By virtue of that statute,

which incorporates pre-existing penalty provisions pertaining to

the three specific chapters previously identified, licensed

entities and their staffs who violate any of the enactment’s

proscriptions are subject to the same civil penalties and fines,

and administrative penalties (including suspension or

revocation of licenses) that have long been applicable to

violations of myriad other duties imposed on long-term care

facilities and their staffs, including those requiring that each

patient be treated “with dignity and respect,” and be provided

“with good hygiene.” (California Assn. of Health Facilities v.

Department of Health Services (1997) 16 Cal.4th 284, 292; see,

e.g., Health & Saf. Code, §§ 1294 [suspension or revocation of

licenses concerning health facilities], 1423, 1424, 1424.5, 1425

[administrative citations and wide-ranging civil fines and

penalties concerning long-term health facilities], 1569.49 [civil

penalties concerning residential care facilities for the elderly],

1569.59 [suspension or revocation of licenses concerning

residential care facilities for the elderly].)

In addition to these civil and administrative penalties,

other provisions within the Health and Safety Code, first

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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, Health and Safety Code

section 1290 imposed a fine of up to $500, and up to 180 days in

county jail, for such violations relating to what were then

colloquially called nursing homes. (Stats. 1973, ch. 1202, § 2,

p. 2572.) Yet despite these and related laws, a comprehensive

1983 report commissioned by the Legislature revealed that

residents of such long-term care facilities continued to face

persistent substandard care, with tragic consequences. (See

Little Hoover Com. (Aug. 1983) The Bureaucracy of Care —

Continuing Policy Issues for Nursing Home Services and

Regulation (Little Hoover Commission report).) That report

recommended enhanced use of criminal prosecution and

penalties to address the most egregious forms of neglect and

abuse. (Id. at p. 93.)

The Legislature responded to the Little Hoover

Commission report in 1985 by, among other things, further

amending Health and Safety Code section 1290, adding

subdivision (c). (Stats. 1985, ch. 10, § 5, p. 24.) That subdivision

has since provided: “Any person who willfully or repeatedly

violates . . . chapter [2, governing Health Facilities] or Chapter

2.4 [governing Long-Term Health Facilities] . . . , or any rule or

regulation adopted under this chapter, relating to the

operation . . . of a long-term health care facility . . . is guilty of a

misdemeanor . . . punish[able] by a fine not to exceed . . .

$2,500 . . . or by imprisonment in county jail . . . not to exceed

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Opinion of the Court by Guerrero, C. J.

180 days, or by both.”29 Significantly, the amended subdivision

instructs courts “determining the punishment to be imposed

upon a conviction under this subdivision” to “consider all

relevant facts, including, but not limited to, the following: [¶]

(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.” (Health & Saf. Code, § 1290, subd. (c).) The 1985

amendment also added an important final subdivision: “For the

purposes of this section, ‘willfully’ or ‘willful’ means the person

doing an act or omitting to do an act intends the act or omission,

29

Health and Safety Code section 1569.40, subdivision (a)

provides similarly regarding violations of chapter 3.2,

concerning “Residential Care Facilities for the Elderly.” As

adopted in 1985, the statute provided: “Any person who violates

this chapter, or who willfully or repeatedly violates any rule or

regulation adopted under this chapter, is guilty of a

misdemeanor and upon conviction thereof shall be punished by

a fine not to exceed one thousand dollars ($1,000) or by

imprisonment in the county jail for a period not to exceed 180

days, or by both a fine and imprisonment.” (Stats. 1985,

ch. 1127, § 3, p. 3821.) As amended a few years later in light of

an ensuing report (Little Hoover Com. (Jan. 1989) Report on

Community Residential Care of the Elderly) documenting

continuing abuse at such facilities and making various

recommendations, including enhanced criminal prosecution (id.

at p. 39), the statute was revised to read as it does today,

reflecting a fine of up to $1,000 and a potential jail term of up to

“one year, or by both the fine and imprisonment.” (Stats. 1989,

ch. 1115, § 14, p. 4098.)

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and knows the relevant circumstances connected therewith.”

(Id., subd. (d).)

Accordingly, by virtue of Health and Safety Code section

1439.54, violations of all parts of the LGBT Long-Term Care

Residents’ Bill of Rights, including the challenged pronouns

provision, are subject not only to civil and administrative

penalties, but also to possible criminal prosecution, leading to

potential fines and incarceration in the county jail. And yet it

seems apparent that the Legislature does not intend for such

criminal penalties to be imposed except as a last resort, in the

most egregious circumstances — after (1) assessment of “all

relevant facts” and limiting considerations, especially those

focusing on a resident’s health and safety, set out in Health and

Safety Code section 1290, subdivision (c); and (2) in light of the

specifically narrowed understanding of “ ‘willfully’ ” and

“ ‘willful’ ” set out in that section’s subdivision (d).

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

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repeatedly refuses to comply with Health and Safety Code

section 1439.51, subdivision (a)(5). Apparently, plaintiff

believes that in no foreseeable circumstance could a criminal

prosecution be justified, nor could a court appropriately impose

a penalty that includes imprisonment in county jail for such a

violation of the challenged pronouns provision.

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 Health and

Safety Code section 1290, subdivision (c).

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 Health and Safety Code section 1439.51,

subdivision (a)(5)’s pronouns provision renders it facially

unconstitutional. We express no opinion regarding the merits

of any future as-applied challenge that might arise concerning

such enforcement of the statute.

IV. DISPOSITION

Plaintiff’s facial challenge to Health and Safety Code

section 1439.51, subdivision (a)(5) fails because the pronouns

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Opinion of the Court by Guerrero, C. J.

provision constitutes a regulation of discriminatory conduct that

incidentally affects speech, is not subject to First Amendment

scrutiny as an abridgment of the freedom of speech, and plaintiff

has not carried its burden to “demonstrate . . . invalidity in ‘at

least “ ‘the generality’ ” [citation] or “vast majority” ’ of cases”

under the “ ‘exacting’ ” standard of a facial challenge. (Martinez,

supra, 15 Cal.5th at p. 352.) Nor is the statute subject to

intermediate scrutiny. But even assuming that intermediate

scrutiny applies, the provision easily satisfies that test.

Accordingly, we reverse the Court of Appeal’s judgment, and

remand for further proceedings consistent with this opinion.

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.

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S270535

Concurring Opinion by Chief Justice Guerrero

As observed ante, majority opinion, part III.D., we

conclude that Health and Safety Code section 1439.51,

subdivision (a)(5) is properly analyzed, and upheld, as a

regulation of discriminatory conduct that incidentally affects

speech — and is not subject to a heightened analysis under the

First Amendment. I write separately to explain that even

assuming the Court of Appeal below was correct in concluding

that Reed v. Town of Gilbert (2015) 576 U.S. 155 (Reed) requires

that we view the challenged pronouns provision as content-

based — and further, that Reed also requires that we exercise

strict scrutiny review — the challenged provision still survives

plaintiff’s facial challenge.

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

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Guerrero, C. J., concurring

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, 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.)

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

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Guerrero, C. J., concurring

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 should be characterized more precisely, as

focusing on discrimination in a very narrow context, namely:

Advancing a fundamental public health concern by protecting

the rights of long-term care residents to be free from

discrimination that targets a legally protected characteristic,

when that conduct is committed by the staff of a long-term care

facility, whose job is to provide and support medical treatment

and intimate personal care. As explained below, the challenged

provision advances this compelling interest, thus facilitating the

ability of such seniors to obtain long-term medical and related

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

intimate personal care in an environment that is conducive to,

and does not undermine, such care.

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 serves 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

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

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 generality at which to

specify compelling governmental interests”].) Instead, the high

court and other courts applying the test — including ours —

have simply proceeded under the “common-law method” to focus

upon and “decide only whether the particular ends asserted . . .

in a given case are compelling.” (What is a Compelling

Governmental Interest?, at p. 73.) I proceed in the same fashion

here.

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

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

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 [use of an anti-Asian epithet “may not be banned on the

ground that it expresses ideas that offend”]; Snyder v. Phelps

(2011) 562 U.S. 443 [signs and speech with insulting language

are constitutionally protected speech]; R. A. V. v. St. Paul (1992)

505 U.S. 377 (R. A. V.) [cross-burning outside a residence is

constitutionally protected speech].) Plaintiff argues that it

likewise seeks to protect the constitutional rights of those —

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

including staff of long-term care facilities — who plaintiff

contends wish to similarly offend by willfully and repeatedly

misgendering those in their care. Residents “taking offense,”

plaintiff asserts, can and should engage in debate with their

caretakers about this matter of public concern. But, plaintiff

argues, the state has no authority to regulate the speech and

related conduct of those who are employed to care for such long-

term residents in such facilities, because the challenged

pronouns provision advances no compelling state interest.

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

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

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).)

Amici curiae on the State’s behalf, drawing upon academic

literature (some published after enactment of the legislation in

2017) have elaborated on these medical and intimate personal

care interests. As noted earlier, the high court has explained

that when applying strict scrutiny, such “[c]ontext matters.”

(Grutter, supra, 539 U.S. at p. 327; see also 303 Creative, supra,

600 U.S. at p. 600, fn. 6 [observing that “context matters” in

considering First Amendment challenge to application of public

accommodations law].) In the context of this facial challenge, I

find it appropriate to consider this literature, advanced by amici

curiae, insofar as it illuminates the state’s interest in enacting

and enforcing the challenged provision. Based on the

Legislative findings and the proffered academic literature, the

following understanding of the Legislature’s rationale emerges.

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

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

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

1

See Putney et al., “Fear Runs Deep:” The Anticipated

Needs of LGBT Older Adults in Long-Term Care (2018) 61 J. of

Gerontological Social Work 887, 888–890 (“Fear Runs Deep”);

Pang et al., Later Life Care Planning and Concerns of

Transgender Older Adults in Canada (2019) 89 The

International J. of Aging and Human Development 39, 41, 51

(Later Life Care Planning); see generally Fasullo et al., LGBTQ

Older Adults in Long-Term Care Settings: An Integrative

Review to Inform Best Practices (2022) 45 Clinical Gerontologist

1087 (LGBTQ Older Adults in Long-Term Care Settings).

2

See, e.g., Justice in Aging et al.: LGBT Older Adults in

Long-Term Care Facilities: Stories from the Field (2010, re-

released 2015) pages 6–8, at <https://justiceinaging.org/wp-

content/uploads/2015/06/Stories-from-the-Field.pdf> (as of

Nov. 6, 2025) (Stories from the Field) (all Internet citations in

this opinion are archived by year, docket number and case name

at <https://courts.ca.gov/opinions/cited-supreme-court-

opinions>); “Fear Runs Deep,” supra, 61 J. of Gerontological

Social Work, at pages 888, 890–891, 895–899; LGBTQ Older

Adults in Long-Term Care Settings, supra, 45 Clinical

Gerontologist, at pages 1090–1093; Kortes-Miller et al., Dying

in Long-Term Care: Perspectives from Sexual and Gender

Minority Older Adults About Their Fears and Hopes for End of

Life (2018) 14 J. of Social Work in End-of-Life & Palliative Care

209, 214–220; Later Life Care Planning, supra, 89 The

International J. of Aging and Human Development, at pages 48–

51.

3

See Stories from the Field, supra, at pages 8–17; LGBTQ

Older Adults in Long-Term Care Settings, supra, 45 Clinical

Gerontologist at pages 1090–1093.

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

pronouns.4 As also noted ante, majority opinion, part III.D.3.,

The California Assisted Living Association has observed that

when a staff member whose job is to provide personal and often

highly intimate care repeatedly misgenders a resident, “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.” These types of experiences have caused

senior LGBT persons to avoid accessing, or to delay obtaining,

needed medical and / or corresponding intimate personal care

services.5

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

4

See, e.g., Stories from the Field, supra, at page 14; cf.

Medina et al., Center For American Progress, Protecting and

Advancing Health Care for Transgender Adult Communities

(Aug. 18, 2021) figure 13, at

<https://www.americanprogress.org/article/protecting-

advancing-health-care-transgender-adult-communities/> (as of

Nov. 6, 2025).

5

See, e.g., Fredriksen-Goldsen et al., The Physical and

Mental Health of Transgender Older Adults: An At-Risk and

Underserved Population (2014) 54 The Gerontologist 488, 496–

498 (The Physical and Mental Health of Transgender Older

Adults); National Center for Transgender Equality, 2015 U.S.

Transgender Survey (2016) pages 10, 219, at

<https://transequality.org/sites/default/files/docs/usts/USTS-

Full-Report-Dec17.pdf> (as of Nov. 6, 2025).

6

The brief cites in support Fabbre and Gaveras, The

Manifestation of Multi-Level Stigma in the Lived Experiences of

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TAKING OFFENSE v. STATE OF CALIFORNIA

Guerrero, C. J., concurring

discrimination have increased odds of depressive distress [7] 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

Transgender and Gender Nonconforming Older Adults (2020)

90 American J. of Orthopsychiatry 350. See id. at pages 350–

351; see also The Physical and Mental Health of Transgender

Older Adults, supra, 54 The Gerontologist at pages 488, 493–

494, 496–498.

7

The brief cites in support White, Hughto, and Reisner,

Social Context of Depressive Distress in Aging Transgender

Adults (2018) 37 J. of Applied Gerontology 1517. See id. at

pages 1518–1530.

8

The brief cites in support Vigny-Pau et al., Suicidality and

Non-Suicidal Self-Injury Among Transgender Populations: A

Systematic Review (2021) 25 J. of Gay & Lesbian Mental Health

358 (Suicidality Among Transgender Populations). See id. at

pages 359, 367; see also Seelman et al., Transgender

Noninclusive Healthcare and Delaying Care Because of Fear:

Connections to General Health and Mental Health Among

Transgender Adults (2017) 2 Transgender Health 17, 26

(Transgender Noninclusive Healthcare); Adams & Vincent,

Suicidal Thoughts and Behaviors Among Transgender Adults in

Relation to Education, Ethnicity, and Income: A Systematic

Review (2019) 4 Transgender Health 226 [surveying 64 research

projects published in 108 articles over the prior 21 years]

(Suicidal Thoughts and Behaviors Among Transgender Adults).

9

See The Trevor Project, National Survey on LGBTQ Youth

Mental Health (2020) Supporting Transgender & Nonbinary

Youth, at <https://www.thetrevorproject.org/wp-

content/uploads/2020/07/The-Trevor-Project-National-Survey-

Results-2020.pdf> (as of Nov. 6, 2025); cf. Russell et al., Chosen

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Guerrero, C. J., concurring

amici curiae report, “discrimination against transgender

persons, including discrimination in gender affirmation, is

associated with higher odds of suicidal ideation, psychological

distress, and substance abuse.”10

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.)

Name Use Is Linked to Reduced Depressive Symptoms, Suicidal

Ideation, and Suicidal Behavior Among Transgender Youth

(2018) 63 J. of Adolescent Health 503, 505.

10

See, e.g., Suicidality Among Transgender Populations,

supra, 25 J. of Gay & Lesbian Mental Health at page 367;

Transgender Noninclusive Healthcare, supra, 2 Transgender

Health at pages 25–26; Suicidal Thoughts and Behaviors

Among Transgender Adults, supra, 4 Transgender Health at

pages 237–238.

11

As observed by amicus curiae California Assisted Living

Association, existing state and federal laws mandate respectful

treatment of patients by staff at analogous skilled and long-term

care facilities. Under Health and Safety Code section 1569.269,

subdivision (a)(1), such residents must be “accorded dignity in

their personal relationships with staff, residents, and other

persons.” As observed ante, majority opinion, part III.D.4.b.,

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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

des

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