Taking Offense v. State

Decision Date16 July 2021
Docket NumberC088485
Citation66 Cal.App.5th 696,281 Cal.Rptr.3d 298
Parties TAKING OFFENSE, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

Llewellyn Law Office and David Llewellyn, Jr., Citrus Heights, for Plaintiff and Appellant.

Matthew Rodriquez, Attorney General, Thomas S. Patterson, Senior Assistant Attorney General, Tamar Pachter and Paul Stein, Supervising Deputy Attorneys General, Anna T. Ferrari, Deputy Attorney General, for Defendant and Respondent.

Duarte, J.

In 2017 the California Legislature enacted Senate Bill No. 219 (2017-2018 Reg. Sess.), which added to the Health and Safety Code the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. (Stats. 2017, ch. 483, §§ 1-4.) Petitioner Taking Offense, an "unincorporated association which includes at least one California citizen and taxpayer who has paid taxes to the state within the last year," sought a writ of mandate asserting facial challenges to two provisions of Senate Bill No. 219. The first, codified in Health and Safety Code section 1439.51, subdivision (a)(5), prohibits staff members of long-term care facilities from willfully and repeatedly referring to a facility resident by other than the resident's preferred name or pronoun when clearly informed of the name and pronoun.1 Taking Offense challenges that provision on the bases that it violates staff members’ rights to free speech, free exercise of religion, and freedoms of thought and belief, and is vague and overbroad. As we will explain, we agree with Taking Offense that section 1439.51, subdivision (a)(5), to which we refer as the pronoun provision, is a content-based restriction of speech that does not survive strict scrutiny.

The second challenged provision, section 1439.51, subdivision (a)(3), makes it unlawful for long-term care facilities or facility staff to assign, reassign, or refuse to assign rooms, where such decisions are based on gender, other than in accordance with a transgender resident's gender identity, unless at the transgender resident's request. Taking Offense challenges the provision as a violation of non-transgender residents’ right to equal protection under the law, contending non-transgender residents are not afforded the same opportunity to request a roommate who does not conform to the resident's gender identity. We disagree that section 1439.51, subdivision (a)(3), to which we refer as the room assignment provision, creates an unconstitutional gender-based classification and conclude Taking Offense's equal protection argument lacks merit.

Senate Bill No. 219

Among other provisions, Senate Bill No. 219 added section 1439.51, which provides in relevant part: "(a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility2 or facility staff to take any of the following actions 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: [¶] ... [¶] (3) Where rooms are assigned by gender, assigning, reassigning, or refusing to assign a room to a transgender resident other than in accordance with the transgender resident's gender identity, unless at the transgender resident's request. [¶] ... [¶] (5) Willfully and repeatedly fail to use a resident's preferred name or pronouns after being clearly informed of the preferred name or pronouns. [¶] ... [¶] (b) This section shall not apply to the extent that it is incompatible with any professionally reasonable clinical judgment."3

Senate Bill No. 219 also added sections 1439.52 and 1439.54. Section 1439.52 requires long-term care facilities to employ procedures for keeping records of a resident's gender identity, correct name as indicated by the resident, and the resident's preferred pronoun. Section 1439.54 provides: "A violation of this chapter shall be treated as a violation under Chapter 2 (commencing with Section 1250 ), Chapter 2.4 (commencing with Section 1417 ), or Chapter 3.2 (commencing with Section 1569 )." Section 1290, in turn, provides that willful and repeated violation of section 1439.51, subdivision (a) is a misdemeanor punishable by a fine not to exceed $2,500 or by imprisonment of up to 180 days.4

Procedural History

Taking Offense filed a petition for writ of mandate asserting facial challenges to section 1439.51, subdivisions (a)(3) and (a)(5). The petition alleged that subdivision (a)(5), the pronoun provision, (1) is unconstitutionally vague and overbroad, in violation of due process of law; (2) violates the equal protection of laws; and (3) violates First Amendment rights of freedom of expression, thought, religion, conscience, and association. The petition also contended subdivision (a)(3), the room assignment provision, violates the First Amendment right to freedom of association as well as equal protection.

Following briefing, the trial court issued a tentative ruling denying the petition in its entirety. No party contested the tentative ruling, which became the court's order. Taking Offense timely filed a notice of appeal.

This case was fully briefed as of August 20, 2020. It was ordered to calendar in March 2021 and argued on May 18, 2021.

IStandard of Review

"We begin by recognizing the ‘strong presumption of the constitutionality of an act of the Legislature.’ [Citation.] "In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act." [Citation.] [M]ere doubt by the judicial branch of the government as to the validity of a statute will not afford a sufficient reason for a judicial declaration of its invalidity, but ... statutes must be upheld as constitutional unless their invalidity clearly, positively, and unmistakably appears .’ [Citation.] These principles govern a challenge to the facial validity of a statute. [Citation.]" ( City of San Diego v. Boggess (2013) 216 Cal.App.4th 1494, 1503-1504, 157 Cal.Rptr.3d 644.)

"The constitutionality of a statute is a question of law, which we review de novo. [Citations.]" ( Vergara v. State of California (2016) 246 Cal.App.4th 619, 642, 209 Cal.Rptr.3d 532.) Taking Offense brings facial challenges to section 1439.51, subdivisions (a)(3) and (a)(5), which has been subject to different standards of review by our Supreme Court. "Under the strictest test, the statute must be upheld unless the party establishes the statute "inevitably pose[s] a present total and fatal conflict with applicable constitutional prohibitions." [Citation.] Under the more lenient standard, a party must establish the statute conflicts with constitutional principles "in the generality or great majority of cases." [Citation.] Under either test, the plaintiff has a heavy burden to show the statute is unconstitutional in all or most cases, and "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute." " ( Coffman Specialties, Inc. v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1145, 98 Cal.Rptr.3d 643.)

IIFirst Amendment Challenge to Section 1439.51, Subdivision (a)(5)

Taking Offense first challenges the pronoun provision on the basis that it is a content- and viewpoint-based restriction on speech that cannot survive strict scrutiny. Taking Offense raises multiple other contentions, including that the provision is: (1) a prior restraint on speech; (2) a violation of the freedom of thought, comparing transgender residents of long-term care facilities to "kings and masters over the rest of the people" and employees of long-term care facilities to "their virtual subjects and slaves"; (3) a violation of the freedom of "conscience, religion and belief"; and (4) a violation of the right to free exercise of religion.

As we will explain, we agree that the pronoun provision is a content-based restriction on speech. The law compels long-term care facility staff to alter the message they would prefer to convey, either by hosting a message as required by the resident or by refraining from using pronouns at all. We are required to apply strict scrutiny to the law by the high court's decision in Reed v. Town of Gilbert (2015) 576 U.S. 155 at page 163, 135 S.Ct. 2218 ( Reed ). As we discuss at greater length post , we recognize the State has a compelling interest in eliminating discrimination against residents of long-term care facilities. However, we conclude the pronoun provision is not narrowly tailored to achieve a compelling government objective because it burdens speech more than is required to achieve the State's compelling objective. Accordingly, the provision does not survive strict scrutiny.

A. First Amendment Principles

The First Amendment to the United States Constitution states: "Congress shall make no law ... abridging the freedom of speech ...." This fundamental right to free speech applies to the states through the Fourteenth Amendment's due process clause. ( Gitlow v. New York (1925) 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138.) Similarly, article I, section 2, subdivision (a) of the California Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." Article I's free speech clause enjoys existence and force independent of the First Amendment to the federal Constitution. ( Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 489, 101 Cal.Rptr.2d 470, 12 P.3d 720.)

A person's right to speak freely prohibits the government from compelling adoption of a government message and protects the right of citizens to refrain from speaking. (S...

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