Business Law

Taking Offense v. State (July 16, 2021, C088485) __ Cal.App.5th __ [2021 WL 3013112]

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Statute criminalizing willful misgendering of transgender residents in long-term care violates First Amendment, but provision requiring gender-based room assignments in accord with resident’s gender identity does not facially violate equal protection.

In 2017, California enacted the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights. (Health & Saf. Code, § 1439.51.) Taking Offense, an unincorporated association, petitioned for a writ of mandate asserting facial constitutional challenges to two provisions: (1) the pronoun provision (§ 1439.51, subd. (a)(5)), which makes it a crime for long-term care employees to “willfully and repeatedly” fail to use a resident’s preferred name and pronoun that they know; and (2) the room-assignment provision (§ 1439.51, subd. (a)(3)), which makes it unlawful for a facility that uses gender-based room assignments to non-consensually assign a transgender resident a room not matching their gender identity. Taking Offense alleged the pronoun provision is a content-based speech restriction that violates employees’ free speech rights, and the room assignment provision violated nontransgender residents’ equal protection rights because they lack the same opportunity to choose whether to be assigned a roommate based on their gender identity or their sex assigned at birth. The trial court denied the petition and Taking Offense appealed.

The Court of Appeal reversed in part and affirmed in part, holding that the pronoun provision violated the First Amendment but the room assignment provision was not unconstitutional. The court subjected the content-based restriction in the pronoun provision to strict scrutiny because its enforcement required analysis of an employee’s speech and the Legislature’s reason for prohibiting it. The court declined to rely on the “captive audience” doctrine to apply a lesser standard because neither employees nor residents could readily express their views elsewhere. Applying strict scrutiny, the court held that the State had not narrowly tailored the pronoun provision to achieve its compelling interest in eliminating discrimination in long-term care facilities. The pronoun provision burdened more speech than was necessary by criminalizing speech that did not amount to actionable harassment, including isolated instances of misgendering, regardless whether the resident was negatively affected or even aware of the remarks.

The court also applied strict scrutiny to the room-assignment provision. The court first determined that all residents were similarly situated because they were subject to a facility’s gender-based room assignments, while the law classifies residents based on transgender status. The court next concluded that the general rule that rooms be assigned based on gender identity does not provide special rights to transgender residents; it merely clarifies that gender-based room assignments must be made in accordance with a resident’s gender identity, rather than their sex assigned at birth. The court also held that the consensual exception permits a facility to accommodate a transgender resident’s request without creating a right that any roommate request be honored. Thus, the provision was not a facially unconstitutional gender-based classification. A two-justice concurring opinion explained that the room-assignment provision could later be challenged as applied if evidence showed the exception was being applied selectively, rather than uniformly, in a long-term care facility.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, 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

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