The Supreme Court today granted review in Taking Offense v. State of California to evaluate constitutional challenges to two provisions of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights, enacted by Senate Bill 219 in 2017.
One provision at issue prohibits staff at a long-term care facility 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.” The other makes unlawful, “[w]here rooms are assigned by gender, [the] 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.”
In a published opinion with two separate concurrences, the Third District Court of Appeal held that “the pronoun provision” “is a content-based restriction of speech that does not survive strict scrutiny.” But the appellate court upheld the “room assignment provision,” rejecting a claim that it “creates an unconstitutional gender-based classification” by violating the equal protection rights of non-transgender residents to have the same opportunity as transgender residents to request a roommate who does not conform to the resident’s gender identity.
[May 26, 2023 update: The court last week indicated it might not reach the merits of this case. (See here.)]
