Health Law Standing Committee

California Supreme Court upholds statute prohibiting long-term care facility employees from intentionally misgendering residents.

Taking Offense v. State of California (Nov. 6, 2025, S270535) ___ Cal.5th ___ [2025 WL 3097904]

Taking Offense, an association opposed to laws requiring recognition of transgender identities, filed a writ petition challenging Health and Safety Code section 1439.51, subdivision (a)(5)’s pronouns provision as facially unconstitutional under the First Amendment. This pronouns provision prohibited 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.” After the trial court denied Taking Offense’s petition, the Court of Appeal reversed in part, holding that, under a strict scrutiny analysis, the challenged provision violates the First Amendment because it is insufficiently tailored to address the state’s interest in eliminating discrimination, and thus is facially unconstitutional.

The Supreme Court reversed the Court of Appeal and upheld the pronouns provision. The Court concluded the provision must be analyzed as a regulation of discriminatory conduct that incidentally affects speech, analogous to Title VII’s bar against hostile work environments, not as an abridgment of speech subject to First Amendment strict scrutiny. The Court emphasized the narrow context in which the statute operates. It regulates the professional conduct of long-term care staff, seeks to promote a caring environment, and protects long-term care residents (a “captive audience”) from discrimination in what is “in effect” their homes. The Court reasoned that the provision is “carefully calibrated” to achieve those ends and does not restrict staff from “expressing their views about gender to anyone (including a resident) in any otherwise lawful manner other than by misgendering a resident—and even then, the prohibition is limited to willful, repeated, knowing acts done because of a legally protected characteristic.” The Court concluded that, even assuming the provision were subject to intermediate scrutiny, it “easily satisfies that test.” Finally, the Court concluded that the possibility of enforcement through pre-existing criminal penalties for particularly egregious violations of the statute does not render the pronouns provision facially unconstitutional.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson, Peder K. Batalden, and Lacey Estudillo at the appellate firm Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.

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