In 2017, the California 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. 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).)
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.”
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.
The Supreme Court of California held in its November 6, 2025 opinion: “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 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 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. 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.”
Source Taking Offense v. State of California, S270535.
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