California Supreme Court Watch

#21-521 Taking Offense v. State of California, S270535. (C088485; 66 Cal.App.5th 696; Sacramento County Superior Court; 34201780002749CUWMGDS.) Petition for review after the Court of Appeal affirmed in part and reversed in part the judgment in an action for writ of administrative mandate. This case presents the following issue: Did the Court of Appeal err in declaring the provision of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights (Health & Saf. Code, § 1439.51) that criminalizes the willful and repeated failure to use a resident’s chosen name and pronouns unconstitutional on its face under the First Amendment?

Review granted: 11/10/2021

Case fully briefed: 6/24/2022

Supplemental briefing ordered: 5/17/2023

The court requests supplemental briefing addressing the following issues:

1. Whether California recognizes a common law taxpayer standing doctrine to bring actions against state officials. In addressing this issue, the parties are asked to address, among other authority that may be relevant, the following: Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 730; Ahlgren v. Carr (1962) 209 Cal.App.2d 248, 252-254; California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390, 395; Chodosh v. Commission on Judicial Performance (2022) 81 Cal.App.5th 248, 268.

2. If the common law provides taxpayer plaintiffs with standing to sue state officials, whether the plaintiff in this case has established any such standing. In addressing this issue, the parties are asked to address, among other authority that may be relevant, the following: Silver v. City of Los Angeles (1961) 57 Cal.2d 39, 40-41; Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 26; California DUI Lawyers Assn. v. Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1264.

Supplemental briefing complete: 1/12/2024

Cause argued and submitted: 5/06/2025

Submission vacated: 7/09/2025

“The court vacated submission in this matter and directed the parties to file supplemental briefs addressing the following issue: What impact, if any, does the United States Supreme Court decision in Free Speech Coalition, Inc. v. Paxton (June 27, 2025, No. 23-1122) 606 U.S. ___ [2025 WL 1773625], have on the issues presented in this case?”

Supplemental brief filed: 7/30/2025

Opinion filed: judgment reversed: 11/06/2025

See the Court of Appeal Opinion.

See the Petition for Review.

See the Oral Argument.

See the California Supreme Court Opinion.  (Taking Offense v. State of California (2025) __ Cal.5th __.)

“On the merits, the State asserts that the pronouns provision [of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights] 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 [fn. omitted] 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.”

Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Groban, Evans, and Jenkins* concurred.

Chief Justice Guerrero filed a concurring opinion, in which Justices Corrigan and Groban concurred.

Justice Kruger filed a concurring opinion, in which Justice Liu concurred.

In the news: Riquelmy, California Supreme Court upholds misgendering law, Courthouse News Service (Nov. 6, 2025).

In the news: Miller, California Supreme Court Upholds LGBT Rights Law for Nursing Home Residents, The Recorder (Nov. 6, 2025) (subscription required).