# Taking Offense v. State of Cal.

> California Supreme Court · November 6, 2025

URL: https://www.frixlaw.com/law-library/cases/11198599

## Case

- **Court:** California Supreme Court
- **Decided:** November 6, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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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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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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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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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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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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(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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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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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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Opinion of the Court by Guerrero, C. J.

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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Opinion of the Court by Guerrero, C. J.

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 (as of
Nov. 6, 2025) (all Internet citations in this opinion are archived
by year, docket number and case name at
);
cf. Medina et al., Center For American Progress, Protecting and
Advancing Health Care for Transgender Adult Communities
(Aug. 18, 2021) figure 13, at
(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
(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
[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11198599. Public record. Not legal advice.