In 2017, the Legislature enacted the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights. 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.
In December, just before the 2017 law went into effect, plaintiff Taking Offense (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. The lawsuit worked its way up to the California Supreme Court.
On November 6, 2025, the Supreme Court delivered a significant ruling in Taking Offense v. State of California (S270535), a case challenging a key provision of the 2017 Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. This legislation aimed to fulfill existing anti-discrimination laws by explicitly prohibiting various forms of bias based on sexual orientation, gender identity, gender expression, or HIV status. The Legislature cited studies highlighting pervasive mistreatment of LGBT elders, including denial of admission, abrupt discharges, harassment, restrictions on visitation, and refusal to use preferred names or pronouns, often stemming from lifelong marginalization that left many without family support networks.
At the heart of the dispute was Health and Safety Code § 1439.51, subdivision (a)(5) – the “pronouns provision” – which makes it unlawful for facility staff to “[w]illfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed,” when motivated wholly or partially by the resident’s protected characteristics. Enforcement draws from pre-existing administrative, civil, and, in extreme cases, criminal penalties applicable to other violations in long-term care settings. Taking Offense, an unincorporated association of California taxpayers opposed to what it termed the “transgender fiction,” filed a pre-enforcement petition for writ of mandate in Sacramento County Superior Court in December 2017, seeking to block the provision as a facial violation of the First Amendment’s free speech protections.
The trial court denied the petition, upholding the provision against First Amendment challenges. On appeal, the Third District Court of Appeal partially reversed in 2021, deeming the pronouns provision overinclusive and insufficiently tailored to the state’s anti-discrimination interest, thus facially unconstitutional under heightened First Amendment scrutiny – whether viewed as content-based speech regulation or compelled speech. The appellate court emphasized that the law criminalized a viewpoint on gender identity without adequately advancing its goals.
The Supreme Court granted review. In a unanimous opinion the court first addressed standing, raised by the state for the first time on review. The justices agreed that the 2018 amendment to Code of Civil Procedure § 526a, which governs taxpayer standing, now limits such suits to local governments and excludes wholly state entities or officers. Tracing the evolution from common law taxpayer standing to the statute’s history, the court clarified that prior decisions blending the two doctrines no longer apply post-amendment. However, under the case’s unusual circumstances – including the state’s delayed objection, the parties’ full litigation of the merits, and the court’s own past expansive interpretations – the justices exercised discretion to reach the merits, avoiding an advisory opinion while deferring broader questions about common law or public interest standing.
On the substance, the court reversed the Court of Appeal, upholding the pronouns provision. Emphasizing the narrow context – vulnerable residents in a “captive audience” environment akin to their home, where staff provide intimate medical and personal care – the justices characterized the law as a regulation of discriminatory conduct that only incidentally burdens speech. Drawing on U.S. Supreme Court precedents like R.A.V. v. City of St. Paul (1992) and this court’s plurality in Aguilar v. Avis Rent A Car System, Inc. (1999), the opinion reasoned that anti-discrimination measures targeting hostile environments, such as workplace harassment, do not trigger First Amendment scrutiny merely because they involve words. The provision is carefully limited: it requires willful, repeated, knowing acts motivated by bias, exempts professionally reasonable clinical judgments, and does not bar staff from expressing gender views in other ways or contexts. Distinguishing cases like Reed v. Town of Gilbert (2015) and 303 Creative LLC v. Elenis (2023), which involved content-based restrictions in public forums or compelled expressive services, the court found no abridgment of free speech rights.
Even assuming intermediate scrutiny applied (as a content-neutral regulation), the provision was appropriate as it advances compelling state interests in protecting LGBT seniors’ dignity, access to care, and freedom from discrimination in a setting where avoidance is impractical, and it is narrowly tailored without restricting more speech than necessary. The court also rejected claims that potential criminal penalties – available only for egregious, unremedied violations after administrative processes – render the law facially invalid, noting their rarity and the Legislature’s intent to use them as a last resort.