The California Supreme Court has issued a modified opinion regarding a case concerning the rights of transgender residents in long-term care facilities. The court’s decision focuses on a specific provision of the state’s Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights, which prohibits staff from repeatedly failing to use a resident’s preferred name or pronouns. The court’s ruling, while modifying the original opinion, upholds the law, emphasizing the importance of protecting vulnerable residents from discrimination.
The case, *Taking Offense v. State of California*, centered on a challenge to Health and Safety Code section 1439.51, subdivision (a)(5), often referred to as the “pronouns provision.” The plaintiff, Taking Offense, an organization that describes itself as opposing efforts to “coerce society to accept [the] transgender fiction,” argued that the law violated the First Amendment by restricting freedom of speech. The state countered that the law was a valid regulation of conduct, not speech, and was designed to protect vulnerable residents.
The Background of the Law
In 2017, the California Legislature enacted the LGBT Long-Term Care Facility Residents’ Bill of Rights. This comprehensive law addressed issues related to the access and treatment of lesbian, gay, bisexual, and transgender (LGBT) seniors in long-term care facilities. The bill aimed to ensure that LGBT residents have the same rights and protections as other residents and are treated with dignity and respect.
The “pronouns provision” is a key part of this legislation. It specifically prohibits staff at long-term care facilities from willfully and repeatedly failing to use a resident’s preferred name or pronouns, if this is done because of the person’s actual or perceived sexual orientation, gender identity, gender expression, or HIV status.
The Court’s Decision
The Supreme Court’s modified opinion, authored by Chief Justice Guerrero, addresses the arguments raised by Taking Offense. The court first addressed the issue of “taxpayer standing,” determining that Taking Offense lacked the legal right to sue under Code of Civil Procedure section 526a. This section generally allows taxpayers to sue local government entities to prevent illegal spending. The court found that the 2018 amendment to this section clarified that it does not apply to suits against the state.
Despite this finding, the court chose to address the merits of the case, recognizing the importance of the issues at stake. The court’s main holding is that the “pronouns provision” does not violate the First Amendment. The court reasoned that the law primarily regulates discriminatory conduct, not protected speech. The court cited existing anti-discrimination laws, like Title VII of the Civil Rights Act of 1964, which prohibit creating a hostile work environment. The court found that the “pronouns provision” is analogous to these anti-discrimination laws because it focuses on preventing a hostile environment for vulnerable residents, not on restricting speech.
The court emphasized the unique setting of long-term care facilities, where residents are often a “captive audience” and depend on staff for medical treatment and personal care. In this context, the court found that the state has a compelling interest in protecting these residents from discrimination. The court also found that the law is narrowly tailored to achieve this goal.
The court rejected the argument that the law is overbroad because it might apply to situations outside the immediate presence of the resident. The court clarified that the provision targets willful and repeated misgendering done because of a protected characteristic, and that it is meant to address conduct that creates a hostile environment.
The court also addressed the potential for criminal penalties associated with violations of the law. The court acknowledged that violations of the LGBT Long-Term Care Residents’ Bill of Rights, including the “pronouns provision,” are subject not only to civil and administrative penalties, but also to possible criminal prosecution, leading to potential fines and incarceration in the county jail. However, the court concluded that the possibility of criminal penalties for particularly egregious violations does not render the provision facially unconstitutional. The court emphasized that criminal prosecution would be reserved for the most extreme cases and would be subject to the constraints outlined in the law.
Concurring Opinions
Two concurring opinions were filed in the case. Chief Justice Guerrero filed a separate concurring opinion to explain that even if the “pronouns provision” were considered content-based and subject to strict scrutiny, it would still survive the challenge. Justice Kruger concurred with the majority’s decision regarding the lack of standing for Taking Offense and agreed with the court’s interpretation of the “pronouns provision.” Justice Kruger emphasized the importance of establishing standing before raising constitutional challenges.
The Impact of the Ruling
The California Supreme Court’s decision is a significant victory for transgender rights in long-term care facilities. It affirms the state’s ability to protect vulnerable residents from discrimination by regulating conduct, even when that conduct involves the use of language. The ruling clarifies the scope of the “pronouns provision,” emphasizing that it targets willful and repeated misgendering that creates a hostile environment. The court’s decision provides guidance for lower courts and reinforces the commitment to ensuring that LGBT seniors have the same rights and protections as other residents.