Ban on Misgendering at Nursing Homes Is Constitutional

Friday, November 7, 2025

Page 1

California Supreme Court:

Ban on Misgendering at Nursing Homes Is Constitutional

Opinion Says Bill Prohibiting Staff From Repeatedly Failing to Use Stated Preferred Pronouns of Residents, Under Threat of Criminal Sanctions, Is Aimed at Discriminatory Conduct Not Speech

By Kimber Cooley, associate editor

The California Supreme Court held yesterday that a 2017 law that prohibits staff at long-term care facilities from “willfully and repeatedly” misgendering residents by failing to use their stated preferred name or pronouns—under the threat of possible civil and criminal penalties—is only an incidental restriction on speech that is not subject to First Amendment scrutiny.

Emphasizing the “narrow context in which the challenged statute operates” and noting that the law was enacted against the backdrop of a larger anti-discrimination statutory scheme directed at public accommodations and residential settings, the court said that the law “should be analyzed, and upheld, as a regulation of discriminatory conduct.”

At issue is a single provision of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights, enacted by the Legislature in 2017 and codified at Health & Safety Code §1439.51(a)(5). That section provides that “it shall be unlawful for a long-term care facility or facility staff” to “willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns.”

Sec. 1439.54 specifies that licensed entities and their employees who violate the act are subject to the same administrative, civil, and criminal penalties applicable to violations of other duties statutorily imposed on long-term care facilities.

Free From Discrimination

Chief Justice Patricia Guerrero authored yesterday’s majority opinion, joined in by Justices Carol Corrigan, Joshua P. Groban, Kelli Evans, and retired Justice Martin J. Jenkins, sitting by assignment, writing:

“[The statute] 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….It is carefully calibrated and does not restrict long-term care facilities’ staff from expressing their views about gender to anyone…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. 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.”

Justice Leondra Kruger penned a separate opinion, joined in by Justice Goodwin H. Liu, concurring in the result.

Writ Petition

The question arose after Taking Offense, an advocacy group that describes itself as an entity dedicated to opposing efforts to “coerce” the acceptance of the “transgender fiction,” filed a petition for a writ of mandate seeking to block enforcement of §1439.51(a)(5) and another portion of the law as facially unconstitutional.

After Sacramento Superior Court Judge Steven M. Gevercer denied the petition in 2018, Taking Offense appealed. In 2021, the Third District Court of Appeal reversed as to the pronouns provision, saying that the section “is a content-based restriction of speech that does not survive strict scrutiny.”

Yesterday’s opinion also addressed the state’s assertion, raised for the first time in proceedings before the high court, that Taking Offense lacks capacity to sue state officers or entities under the “taxpayer standing” doctrine found at Code of Civil Procedure §526a, which references only “local agenc[ies].”

Guerrero acknowledged that case law interpreting a former version of the section had allowed for taxpayers to bring suit against state actors but said “we agree with the State” that the current statement of the law “does not allow standing to sue wholly state officers or entities.” However, she declared:

“In light of [the] 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.”

Narrow Setting

Guerrero opined:

“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.”

Pointing to jurisprudence finding that the First Amendment’s prohibition against content discrimination is not absolute, she said that courts have noted that laws that prohibit sexual and racial discrimination—even in the form of pervasive derogatory language—in employment practices are examples of statutes that permissibly target conduct rather than speech. She wrote:

“[T]he 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….[W]e interpret statutory provisions in context, not in isolation. 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.”

The chief justice noted that “[s]cholarly research…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” and remarked that the law “constitutes a proper regulation analogous to Title VII[] [of the Civil Rights Act’s] prohibition of a hostile work environment.”

Harassment in Care Setting

She clarified:

“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 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’…because they were ‘[w]illfully’ committed…‘…on the basis of a person’s actual or perceived sexual orientation, gender identity, [or] gender expression….’ ”

Guerrero further reasoned that, even assuming that intermediate scrutiny applied based on the law having some speech implications, “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.”

Rejecting the view that the possibility of criminal penalties rendered the burden more than incidental, she commented:

“[W]e conclude plaintiff has failed to demonstrate that the remote possibility of prosecution and enforcement by way of criminal penalties for particularly egregious violations of Health and Safety Code section 1439.51, subdivision (a)(5)’s pronouns provision renders it facially unconstitutional.”

Other Opinions

The chief justice also penned a concurring opinion, joined in by Corrigan and Groban, faulting the Third District for “broadly characteriz[ing] the law as prohibiting even isolated or off-hand instances of willful misgendering.” Saying that the court’s interpretation of the statute, by analogizing to hostile environment claims, resolves these concerns, she wrote:

“Health and Safety Code section 1439.51, subdivision (a)(5), advances a compelling state interest in the context of long-term care by protecting the rights of such residents to be free from discrimination that targets a legally protected characteristic, when that conduct is committed by the staff of a long-term care facility whose job is to provide and support medical treatment and intimate personal care….[C]ontrary to the Court of Appeal below, the challenged statute is sufficiently narrowly tailored, and not overbroad. Finally, the provision survives the least restrictive alternative test…and…the prospect of criminal penalties to address egregious violations does not warrant invalidation….”

Kruger, also writing separately, said that she “agree[s] with the majority that Taking Offense lacks standing to sue under Code of Civil Procedure section 526a” and that “unusual circumstances” of the case make it appropriate “for this court to address the merits of the Court of Appeal’s decision.” However, she asserted that “I would…reverse the Court of Appeal’s decision solely on the basis” that the appellate court made an “interpretative mistake.”

She remarked:

“The [Court of Appeal] acknowledged ‘that the state has a compelling interest in eliminating discrimination on the basis of sex,’ including ‘discrimination on the basis of sexual orientation or transgender status.’…But it deemed the pronouns provision inadequately tailored to that interest, because the court understood the provision to ‘prohibit[]…isolated remarks not sufficiently severe or pervasive to create an objectively hostile…environment.’ ”

The justice argued that “[p]roperly construed, that provision requires a showing that closely resembles the showing required to establish discrimination under title VII of the Civil Rights Act of 1964” and that “it is unquestioned that Title VII may constitutionally be applied to uses of language that amount to discrimination.”

She added:

“In recognition of the important prudential and separation of powers principles that underlie our standing doctrine, I would go no further. Any additional questions about the validity of the statute should be addressed only after a challenger has established its standing to invoke the courts’ power of judicial review.”

The case is Taking Offense v. State of California, 2025 S.O.S. 3125.