Captive-Audience Care and the Limits of Taxpayer Suits: California Upholds Long‑Term Care Pronoun Protections and Clarifies § 526a Standing

Introduction

This commentary analyzes the California Supreme Court’s decision in Taking Offense v. State of California (Nov. 6, 2025), a landmark opinion authored by Chief Justice Guerrero. The case presented two far‑reaching issues:

Who can bring taxpayer suits challenging state action under Code of Civil Procedure § 526a after its 2018 amendment; and
Whether California’s “pronouns provision” in the LGBT Long‑Term Care Facility Residents’ Bill of Rights (Health & Safety Code § 1439.51(a)(5)) violates the First Amendment on its face by banning willful and repeated misgendering of residents by facility staff.

The plaintiff, “Taking Offense,” an association opposed to transgender‑inclusive norms, filed a pre‑enforcement facial challenge to § 1439.51(a)(5), arguing compelled speech and overbreadth. The State defended the law as an anti‑discrimination rule that regulates professional conduct in a unique setting where residents are a captive audience in what is effectively their home and healthcare environment.

The trial court denied the petition; the Court of Appeal reversed in part and held the pronouns provision facially unconstitutional under strict scrutiny. The Supreme Court reversed the Court of Appeal, both clarifying taxpayer standing doctrine and upholding the pronouns provision.

Summary of the Opinion

Taxpayer standing under § 526a: The Court held that, as amended in 2018, Code of Civil Procedure § 526a authorizes taxpayer suits only against “local agencies,” not the State or state officers or entities. Earlier decisions that judicially extended the statute to state defendants were criticized as textually unsupported. Although the State first raised standing on review, lack of standing is jurisdictional and can be raised at any time. Nevertheless, due to the unusual posture and the public importance of the constitutional question, the Court exercised its discretion to address the merits and dispel the constitutional “cloud.”
First Amendment challenge: The Court upheld Health & Safety Code § 1439.51(a)(5). It construed the provision as a regulation of discriminatory conduct (akin to harassment law under Title VII) that only incidentally affects speech, and therefore not subject to First Amendment scrutiny as a speech restriction. Even if intermediate scrutiny applied (as suggested by the U.S. Supreme Court’s 2025 decision in Free Speech Coalition v. Paxton), the law would “easily” survive. The possibility of criminal penalties for egregious violations does not render the statute facially invalid.
Concurrences:
- Chief Justice Guerrero (joined by Justices Corrigan and Groban) also wrote separately to explain that even assuming strict scrutiny applies, the pronouns rule still withstands review given the compelling state interest and narrow tailoring in a long‑term care setting.
- Justice Kruger (joined by Justice Liu) agreed § 526a does not confer standing and that the Court could act to remove the “cloud” created by the Court of Appeal, but would reverse solely on statutory interpretation grounds (i.e., that the provision already incorporates Title VII‑like hostility thresholds) and would not reach broader constitutional questions absent a party with standing.

Analysis

1) Precedents Cited and Their Role

Reed v. Town of Gilbert (2015) 576 U.S. 155. Reed’s strict scrutiny for content‑based laws was central to the Court of Appeal’s analysis. The Supreme Court distinguished Reed because § 1439.51(a)(5) regulates discriminatory conduct, not public discourse in a traditional forum.
R.A.V. v. City of St. Paul (1992) 505 U.S. 377. Key foundation: laws directed at conduct may permissibly sweep in discriminatory words as incidental to regulating the conduct (e.g., hostile environment), without becoming subject to strict scrutiny merely due to words being involved.
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121. Plurality opinion (and a concurring opinion) upheld an injunction prohibiting racial epithets in the workplace under FEHA, relying on Title VII principles. Aguilar framed hostile environment liability as regulating conduct, not protected speech. This reasoning undergirds the Court’s approach to misgendering in long‑term care.
Title VII hostile environment cases: Meritor Savings Bank v. Vinson (1986) 477 U.S. 57; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17; Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75. These decisions define “severe or pervasive” harassment and the objective/subjective hostility tests. The Court borrows this structure to construe § 1439.51(a)(5) in the care‑home setting.
Captive audience doctrine: Rowan v. Post Office Dept. (1970) 397 U.S. 728; FCC v. Pacifica Foundation (1978) 438 U.S. 726; Frisby v. Schultz (1988) 487 U.S. 474; Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753; Hill v. Colorado (2000) 530 U.S. 703. These cases justify greater regulation where listeners cannot reasonably avoid the message—such as in the home and healthcare contexts—supporting the State’s interest in safeguarding residents’ dignity and care.
Distinguished compelled speech/expressive association cases: 303 Creative LLC v. Elenis (2023) 600 U.S. 570 (custom expressive websites); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557 (parade speech); Boy Scouts of America v. Dale (2000) 530 U.S. 640 (forced inclusion altering group’s own message). The Court explains § 1439.51(a)(5) regulates professional caregiving conduct in a healthcare/home setting, not compelled expressive products or membership in expressive associations.
Rumsfeld v. FAIR (2006) 547 U.S. 47; Sorrell v. IMS Health (2011) 564 U.S. 552. Reinforce that conduct is regulable even if evidenced by or carried out through words (e.g., “White Applicants Only” signs, agreements in restraint of trade).
Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461. The Court reads this recent U.S. Supreme Court precedent to confirm that even where intermediate scrutiny applies to incidental burdens on protected speech, longstanding, targeted regulations addressing important interests are valid if they do not burden substantially more speech than necessary. The Court notes that § 1439.51(a)(5) fits comfortably within the tradition of anti‑discrimination and harassment law.
§ 526a standing line: Blair v. Pitchess (1971) 5 Cal.3d 258; Serrano v. Priest (1971) 5 Cal.3d 584; Adams v. DMV (1974) 11 Cal.3d 146; Stanson v. Mott (1976) 17 Cal.3d 206—cases that had treated § 526a as reaching state defendants were criticized as melding common law taxpayer principles with the statute without analysis. Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241 triggered the 2018 amendment clarifying tax types and redefining the defendant as a “local agency.” The Court harmonizes the statute’s text and history to limit § 526a suits to local government.

2) Legal Reasoning

A) Taxpayer Standing under § 526a Post‑2018

The Court undertakes a careful textual and historical reading of § 526a. The 1909 statute authorized suits to restrain illegal expenditures of a “county, town, city or city and county.” Subsequent cases conflated common law taxpayer standing (which historically reached state officials in limited contexts) with § 526a, ultimately “reading the ‘state’ into” the statute without analysis. In 2018, the Legislature amended § 526a in response to Weatherford, expressly substituting “local agency” and defining it to mean a city, town, county, city and county, district, public authority, or other political subdivision. The Supreme Court holds:

Section 526a, as amended, does not confer taxpayer standing to sue the State or state officers/entities.
The Court encourages the Legislature (potentially through the Law Revision Commission) to clarify and harmonize § 526a with any surviving common law taxpayer standing, but does not reach whether common law public‑interest or taxpayer standing remains viable.
Despite the standing defect, the Court proceeds to the merits to resolve a pressing constitutional issue and provide guidance, invoking its supervisory authority to avoid uncertainty for residents, facilities, and the State.

B) Characterizing § 1439.51(a)(5): Conduct Regulation in a Unique Care‑Home Context

The opinion underscores that residents of long‑term care facilities are a “captive audience” in a space that is simultaneously their home, a healthcare setting, and a place of intimate personal care. The challenged provision:

Applies only to facility staff acting in their job‑related role;
Proscribes willful and repeated failure to use a resident’s preferred name or pronouns after clear notification;
Requires that the conduct occur wholly or partially because of a protected characteristic (sexual orientation, gender identity/expression, HIV status); and
Is embedded in a broader statutory scheme that enumerates other prohibited discriminatory actions (e.g., room assignment, restroom access, dress, visitation), signaling a focus on conduct, not debate or ideology.

Construed in light of Title VII and FEHA hostile environment doctrine, the Court reads § 1439.51(a)(5) to reach misgendering that is severe or pervasive enough to create an objectively hostile environment and that the resident subjectively perceives as abusive. This aligns with Harris and Oncale’s totality‑of‑circumstances framework and fits seamlessly within R.A.V.’s conduct‑regulation exception. The Court rejects the Court of Appeal’s portrayal of the law as “criminalizing occasional, isolated, off‑hand” instances: the statute’s “willfully and repeatedly” and “because of” requirements, coupled with hostile‑environment thresholds, exclude inadvertent slip‑ups and de minimis errors.

C) Scope and Limits: Inside the Facility, In the Role, With Resident Perception

The Court emphasizes narrowing constructions:

The provision applies on the facility’s campus and in the staff’s professional capacity; it does not regulate staff’s personal speech in their homes, public spaces, or online, except when speech occurs in the course of job‑related communications about a resident.
It covers misgendering in a resident’s presence or, when outside the resident’s presence, instances that the resident learns about and perceives as abusive (consistent with how harassment outside a victim’s immediate presence can contribute to hostility).
“On the basis of” is read as “because of”; “willfully” tracks statutory definitions requiring intent and knowledge; “repeatedly” means more than once.

D) Why Reed, 303 Creative, Hurley, and Boy Scouts Do Not Control

Reed concerned sign regulations in a public forum; 303 Creative, Hurley, and Boy Scouts involved compelled production of expressive content or compelled expressive association—contexts where the regulated speech is the speaker’s own message. In contrast, § 1439.51(a)(5) regulates professional caregiving conduct within a home/healthcare environment to ensure dignified, effective care for a captive audience. It does not compel staff to espouse an ideology; it bars conduct that undermines residents’ dignity and care by persistently refusing their stated names/pronouns because of protected traits. Staff remain free to express views on gender in other contexts; what is restricted is discriminatory conduct amounting to harassment within the caregiving role.

E) Intermediate Scrutiny, If Any, Is Easily Met

Drawing on Free Speech Coalition (2025), the Court explains that even if the pronouns provision incidentally burdens protected speech, it advances important governmental interests unrelated to suppressing ideas and does not burden substantially more speech than necessary:

Important interests: protecting the dignity, autonomy, mental and physical health of residents and ensuring an environment conducive to medical and intimate personal care; preventing harassment and discrimination in a residential healthcare setting where residents cannot readily avoid the conduct.
Tailoring: the rule is limited to willful, repeated, knowing misgendering because of protected characteristics, within the facility, by staff acting in their jobs, and only where conduct contributes to a hostile environment. Alternative channels for expressing views remain abundant outside the caregiving context.

F) Strict Scrutiny Would Also Be Satisfied (Concurring Analysis)

In her concurring opinion, Chief Justice Guerrero elaborates that even under strict scrutiny the statute is valid:

Compelling interest, contextualized: protecting long‑term care residents from discriminatory conduct by those charged with providing medical and intimate personal care, thereby promoting an environment essential to effective care in a home‑like, captive‑audience setting.
Narrow tailoring: the same statutory limits—willfulness, repetition, “because of” a protected trait, Title VII‑like hostility thresholds, in‑facility, job‑related scope—ensure the law restricts only what is necessary to protect the compelling interest. Proposed alternatives (e.g., relying solely on employment enforcement, staffing only with “willing” employees, or singling out “facility‑related communications” in a narrower way) would be less effective in a 24/7 care environment and risk gaps in immediate caregiving coverage.

G) Criminal Penalties Do Not Doom the Statute on Its Face

Enforcement of the LGBT Long‑Term Care Residents’ Bill of Rights is channeled through pre‑existing administrative and civil remedies. In egregious cases, long‑standing misdemeanor provisions in the Health & Safety Code allow criminal penalties. Critically:

Criminal exposure is a last resort, aimed at willful/repeated violations that implicate health and safety; courts must consider enumerated sentencing factors tied to patient risk and harm.
The availability of criminal penalties—especially given their narrow statutory design and procedural safeguards—does not render the pronouns provision facially unconstitutional.

3) Impact

A) Taxpayer Litigation Landscape

§ 526a suits against the State are no longer viable. Taxpayer plaintiffs must target “local agencies” as defined. Attempts to sue state‑level defendants must rest on other standing doctrines, if any. The Court invites legislative review to clarify how, if at all, common law taxpayer standing coexists with § 526a after 2018.
Pending and future cases: Litigants relying on § 526a to sue state entities should reassess standing strategies. Courts will likely scrutinize complaints that blend statutory and common law taxpayer theories and may require alternative bases (e.g., direct injury, specific statutory standing).

B) Long‑Term Care Compliance and Resident Rights

Operational implications: Facilities should ensure:
- Resident records reflect the correct name, pronouns, and gender identity (as required by § 1439.52);
- Staff training emphasizes respectful address and the prohibition on willful, repeated misgendering because of protected traits;
- Complaint channels and ombudsman postings are maintained (§ 1439.51(c));
- Policies are aligned with federal dignity/respect regulations and CMS guidance that staff should use residents’ chosen names/pronouns.
Enforcement: Expect administrative citations and civil penalties as primary tools; criminal enforcement remains reserved for rare, egregious cases involving significant risk or harm.
Doctrinal signal: The Court’s conduct‑regulation framing may inform other anti‑discrimination provisions in sensitive settings (healthcare, housing, schools) where captive‑audience and professional‑conduct concerns are acute.

C) First Amendment Doctrine in California

Conduct vs. speech: California’s high court reaffirms that anti‑harassment and anti‑discrimination measures targeting hostile environments regulate conduct and can validly encompass words used to perpetuate the conduct.
Captive audience care: The decision elevates the relevance of the home/healthcare context in assessing governmental interests and tailoring.
Facial challenges disfavored: The opinion reiterates the heavy burden a challenger bears to show a statute’s invalidity in the “generality” or “vast majority” of applications—a burden not met here.

Complex Concepts Simplified

Facial vs. as‑applied challenge: A facial challenge argues a law is invalid in most applications, based on its text alone. An as‑applied challenge contests the law’s application to specific facts. The Court resolved a facial challenge only; as‑applied challenges remain theoretically possible.
“Willfully and repeatedly”: More than once, with intent and knowledge of relevant circumstances. Occasional slips or good‑faith mistakes do not qualify.
“On the basis of”: Synonymous with “because of.” The protected characteristic must actually play a role in the decision to misgender.
Hostile environment: Harassment that is severe or pervasive enough to create an objectively abusive environment and that the victim subjectively perceives as abusive, evaluated under the totality of the circumstances.
Captive audience: Listeners who cannot reasonably avoid unwanted speech (e.g., in the home or during medical care), justifying greater regulation to protect privacy, dignity, and health.
Conduct regulation with incidental speech effects: Laws targeting harmful conduct do not become “speech regulations” requiring strict scrutiny merely because the conduct is carried out through words.
Section 526a standing: After 2018, taxpayer suits under § 526a may only be brought against local agencies as defined; the statute does not authorize suits against state officers or entities.

Conclusion

Taking Offense v. State of California establishes two important precedents. First, the Court clarifies that taxpayer standing under § 526a is limited to suits against “local agencies,” not the State, aligning the statute’s reach with its text post‑2018 amendment and disentangling it from earlier case law that conflated statutory and common law doctrines. Second, the Court upholds California’s long‑term care pronouns provision by situating it within the familiar ambit of anti‑discrimination and hostile environment law: it regulates professional conduct that undermines residents’ dignity and care, in a setting where residents are a captive audience in their home and healthcare environment. The opinion’s careful construction of the statute—requiring willful, repeated misgendering because of a protected trait, in the staff role, and to the extent it contributes to a hostile environment—confirms both the State’s compelling interest in protecting residents’ wellbeing and the law’s modest, targeted scope.

As a result, California facilities have clear guidance: respectful address is part of professional care, and persistent refusal, when it amounts to harassment, is a form of discrimination the State may prohibit. For litigants, the decision signals that facial challenges to such tailored anti‑discrimination laws face steep odds—especially in captive‑audience, care‑home contexts—and that § 526a is not a vehicle for statewide taxpayer suits. The Court leaves room for legislative fine‑tuning of standing doctrine and for fact‑specific litigation where appropriate, but the central teaching is firm: in long‑term care, pronoun protections are constitutionally sound as a regulation of discriminatory conduct.