Taxpayer Standing After the 2018 Amendment and Pronoun Protections in Long‑Term Care:
A Commentary on Taking Offense v. State of California (Cal. Supreme Ct. 2025)

I. Introduction

This commentary analyzes the California Supreme Court’s decision in Taking Offense v. State of California, S270535 (Nov. 6, 2025, modified Nov. 25, 2025). The case sits at the intersection of two significant doctrinal developments:

Taxpayer standing under Code of Civil Procedure section 526a after its 2018 amendment; and
The constitutional status of statutory protections for transgender and other LGBT residents in long‑term care facilities, specifically a requirement that staff use residents’ preferred names and pronouns.

The plaintiff, “Taking Offense,” is an unincorporated association of one or more state taxpayers committed to opposing what it describes as the “transgender fiction” and “nonbinary gender paradigm.” It brought a facial First Amendment challenge to Health & Safety Code section 1439.51(a)(5), a provision of the 2017 Lesbian, Gay, Bisexual, and Transgender Long‑Term Care Facility Residents’ Bill of Rights (“LGBT Long-Term Care Residents’ Bill of Rights”).

That “pronouns provision” makes it unlawful for long‑term care facility staff to:

“Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns,”

when doing so “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.”

The superior court upheld the statute; the Court of Appeal reversed, holding the pronoun requirement facially invalid under the First Amendment as a content‑based restriction on speech that failed strict scrutiny (Taking Offense v. State of California (2021) 66 Cal.App.5th 696). On review, the State for the first time argued that the plaintiff had no taxpayer standing under section 526a to sue the State or its officers.

The Supreme Court’s opinion, authored by Chief Justice Guerrero, does three major things:

It holds that section 526a, as amended in 2018, authorizes taxpayer suits only against “local agencies” and their officers, not against the State or state officers or entities.
Despite that lack of standing, it exercises its discretionary authority to reach the merits in order to review and reverse the Court of Appeal’s constitutional ruling.
On the merits, it holds that the pronouns provision is a regulation of discriminatory conduct (harassment) in a special institutional setting—long‑term care facilities—and is not an abridgment of free speech. Even if intermediate scrutiny applied, the Court concludes, the law would easily be sustained.

Chief Justice Guerrero also files a separate concurring opinion (joined by Justices Corrigan and Groban) explaining why the statute would survive even strict scrutiny if that standard applied. Justice Kruger, joined by Justice Liu, concurs in part and in the judgment, favoring a narrower resolution on statutory interpretation grounds and emphasizing constitutional‑avoidance and standing principles.

II. Summary of the Opinion

A. Standing Under Code of Civil Procedure Section 526a

Section 526a historically authorized “taxpayer suits” to restrain the illegal or wasteful expenditure of public funds. Before 2018, courts had judicially extended the statute—originally textually limited to “county, town, city or city and county” officers—to allow taxpayer suits against state officers and agencies, often blending statutory and common‑law taxpayer doctrines.

In 2018, the Legislature amended section 526a in response to this Court’s decision in Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, which interpreted the type of “tax” sufficient to confer standing. The amendment:

Expressly replaced the old local government list with the term “local agency”; and
Defined “local agency” as “a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state.” (Code Civ. Proc., § 526a, subd. (d)(1).)

Reading the new text in light of prior judicial expansions, the Supreme Court holds that the statute now unambiguously applies only to local governments and their officers; it no longer provides a statutory basis to sue state entities or state officers for taxpayer relief. The Court candidly acknowledges that its own prior decisions had “no textual support” in the statute and had “sowed confusion” by blending statutory and common‑law taxpayer doctrines.

Because Taking Offense sued only the State and state agencies/officers, it lacks statutory taxpayer standing under section 526a. The Court expressly does not resolve whether common‑law taxpayer standing (or “public interest” standing) survives, instead encouraging the Legislature (potentially with the Law Revision Commission) to comprehensively clarify the field.

B. Proceeding to the Merits Despite Lack of Standing

Ordinarily, lack of standing is jurisdictional and requires dismissal. But the Court invokes its discretionary power under the California Constitution (art. VI, § 12(b)) and Dix v. Superior Court (1991) 53 Cal.3d 442 to do something highly unusual: reach the constitutional merits even though the named plaintiff lacks standing.

The Court reasons that:

The Court of Appeal’s published decision facially invalidating the pronouns provision on First Amendment grounds has already created a “cloud” over the statute’s constitutionality, affecting the State’s ability to enforce it and the behavior of regulated parties.
Leaving that decision in place, without review on the merits, would “impair the administration of justice” by leaving both the State and potentially affected speakers uncertain of their rights and obligations.
The case has been fully litigated on the merits below and in this Court.

Under these “extraordinary circumstances,” the Court reverses the Court of Appeal’s constitutional judgment and explains why the pronouns provision is not facially unconstitutional.

C. The First Amendment Ruling on the Pronouns Provision

On the merits, the Court:

Emphasizes the narrow institutional and factual context: residents of long‑term care facilities, who are often medically vulnerable and for whom the facility is effectively both home and site of intimate medical care, are a captive audience dependent on staff for basic needs.
Reads section 1439.51(a)(5) as part of a broader anti‑discrimination scheme that clarifies prohibited conduct (admissions, room assignments, restroom access, clothing, association, medical care, and pronoun use) when motivated by protected characteristics.
Holds that the pronouns provision is best understood as a regulation of discriminatory conduct—akin to Title VII or FEHA hostile environment harassment—not as a direct regulation of protected speech.
Concludes that, as such, it is not subject to First Amendment scrutiny as an “abridgment of the freedom of speech.”
Further holds that, even if one assumed some level of First Amendment scrutiny applied—e.g., intermediate scrutiny under the Court’s recent decision in Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461—the statute would easily satisfy that standard.
Rejects the Court of Appeal’s view that the law “criminalizes occasional, off‑hand, or isolated instances of misgendering” that have no impact on residents’ treatment or access to care, and construes “willfully and repeatedly” in context to target harassment severe or pervasive enough to create a hostile environment.
Holds that the possibility of criminal enforcement in extreme cases, through existing health‑facility penalty statutes, does not render the pronouns provision facially invalid.

Chief Justice Guerrero’s concurrence adds that, even if the pronouns rule is treated as a content‑based regulation and subjected to the strict scrutiny framework of Reed v. Town of Gilbert (2015) 576 U.S. 155, it still survives: it serves a compelling state interest and is narrowly tailored with no equally effective less restrictive alternative.

Justice Kruger’s concurrence agrees that section 526a does not confer standing and that the Court of Appeal’s decision should be reversed, but would stop after correcting the Court of Appeal’s misinterpretation of the statute’s scope. In her view, strong separation‑of‑powers and prudential concerns counsel against resolving broader First Amendment questions absent a plaintiff with proper standing and a concrete factual record.

III. Detailed Analysis

A. Taxpayer Standing and Section 526a

1. Common‑Law Taxpayer Suits and the Original Statute

Long before section 526a, California, like many states, recognized common‑law taxpayer standing: a local taxpayer could sue to enjoin unlawful or wasteful expenditures of public funds by local officials. In Winn v. Shaw (1891) 87 Cal. 631, a county taxpayer successfully enjoined a county board of supervisors from purchasing land without proper notice. The Court explained that a county taxpayer has “such an interest in the proper application of funds belonging to the county that he may maintain an action” to prevent payment of invalid claims.

In 1909, the Legislature partially codified this doctrine in former Code of Civil Procedure section 526a. As enacted, it authorized:

“An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, [to] be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.” (Former § 526a, italics added.)

Notably, the statute:

Applied only to local governmental entities (no mention of the State);
Required the plaintiff to be a “citizen resident” of the jurisdiction; and
Required liability for, or payment of, a tax in that jurisdiction within one year of suit.

Early decisions generally applied the statute according to its text to challenge local governmental actions, alongside the still‑developing common‑law doctrine.

2. Judicial Expansion to State‑Level Suits

Separately, some mid‑20th‑century cases recognized common‑law taxpayer suits against state officers, without invoking section 526a. In Ahlgren v. Carr (1962) 209 Cal.App.2d 248, taxpayers sued state officials over textbook expenditures; the court found taxpayer standing based on the “great weight of authority” nationally but did not mention section 526a. Likewise, in California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390, taxpayers challenged a Medi‑Cal contract as violating the state constitution’s civil service provision; again, the court relied on common‑law principles, not the statute.

The trouble began when the Supreme Court later misread those common‑law cases as interpreting section 526a. In Blair v. Pitchess (1971) 5 Cal.3d 258, county taxpayers challenged the constitutionality of “claim and delivery” statutes as applied by county officials. After noting that section 526a allowed taxpayer suits against county officers, the Court added—incorrectly—that “it has been held that taxpayers may sue state officials to enjoin such officials from illegally expending state funds,” citing Ahlgren and Williams. (5 Cal.3d at p. 268.)

That dictum was understood in later cases as a statutory interpretation of section 526a, not as a reference to a separate common‑law doctrine. In Serrano v. Priest (1971) 5 Cal.3d 584, 618, footnote 38, the Court asserted that “state officers too may be sued under section 526a,” citing Blair, Williams, and Ahlgren. In Adams v. Department of Motor Vehicles (1974) 11 Cal.3d 146, 151, footnote 10, the Court again held that section 526a provided taxpayer standing against state DMV officials, relying on Blair. And in Stanson v. Mott (1976) 17 Cal.3d 206, 223, the Court cited both Ahlgren (a common‑law case) and section 526a in recognizing taxpayer standing to challenge state expenditures promoting a bond measure.

The Courts of Appeal followed suit, repeatedly stating that section 526a had been “judicially extended” to cover “all state and local agencies and officials.” (Vasquez v. State of California (2003) 105 Cal.App.4th 849, 854; see also Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 28; Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1308.)

Scholars and treatises criticized this case law as confused and unsupported, blending statutory and common‑law doctrines without careful analysis. The Supreme Court in Taking Offense agrees with that critique: “We discern no textual support for our initial judicial expansion of former section 526a to allow for suit against state officers and entities.”

3. The 2018 Amendment and Weatherford

In Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, a taxpayer challenged local vehicle impoundment practices. The Court granted review to clarify what types of “tax” satisfy section 526a. It held a property tax is sufficient but not necessary; other taxes payable to the defendant locality might also suffice. Chief Justice Cantil‑Sakauye’s concurrence invited the Legislature to clarify the statute.

The Legislature responded in 2018 (Stats. 2018, ch. 319, § 1) by:

Enumerating a broad set of taxes that can confer standing (e.g., income, sales taxes); and
Replacing “county, town, city or city and county” with the defined term “local agency,” meaning “a city, town, county, or city and county, or a district, public authority, or any other political subdivision in the state.”

The legislative history focused on the kind of taxes needed to sue local entities; it did not discuss the judiciary’s prior extension of the statute to state‑level defendants. But as the Supreme Court now points out, the new definition of “local agency” implicitly excludes the State itself and state‑wide agencies.

The Court initially wrote in its slip opinion that section 526a “does not allow standing to sue wholly state officers or entities,” but, by order dated November 25, 2025, deleted “wholly” to avoid any implication that mixed suits involving both local and state defendants might alter the analysis. The corrected statement is simply: the amended statute “does not allow standing to sue state officers or entities.”

4. The Court’s New Rule: Section 526a Is Now Local‑Only

The Court’s holding on standing is clear and categorical:

“By this amendment, the Legislature has made it clear that the statute confers standing to sue only local, and not state governmental officers and entities. Accordingly, we hold that section 526a, as amended in 2018, does not afford standing to sue state entities or officials to restrain and prevent asserted illegal expenditure of public funds.”

At the same time, the Court recognizes ongoing doctrinal uncertainty because:

Common‑law taxpayer suits against the State (e.g., Ahlgren, Williams) have never been formally abolished; and
Some more recent decisions have found taxpayer standing under a hybrid of section 526a and common law (e.g., California Taxpayers Action Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115; California DUI Lawyers Assn. v. DMV (2018) 20 Cal.App.5th 1247; Raju v. Superior Court (2023) 92 Cal.App.5th 1222, review granted).

Because it can dispose of the statutory claim, and because plaintiff’s standing is defective even under common‑law theories, the Court sidesteps the broader question whether common‑law taxpayer standing (or “public interest” standing) remains available to sue the State. It instead strongly encourages legislative clarification, possibly by merging a refined version of the common‑law doctrine into a further‑revised section 526a.

5. Proceeding to the Merits: A Narrow but Important Exception

Despite finding no standing, the Court declines simply to vacate the Court of Appeal’s opinion. It notes that:

Standing is generally jurisdictional and must “exist at all times until judgment is entered.”
However, in Dix v. Superior Court (1991) 53 Cal.3d 442, 454, the Court reversed a Court of Appeal decision for lack of standing but nevertheless reached the merits “for the guidance of the lower courts.”

Here, the Court reasons that:

“Were we to conclude that we lack jurisdiction to address the Court of Appeal’s analysis and judgment invalidating the challenged provision … a cloud over the constitutionality of the statute—a significant matter of public interest—would continue to loom.”

In light of:

Its own role in previously expanding section 526a;
The fully briefed First Amendment issues; and
The disruptive effect of a statewide facial invalidation of an important civil rights statute,

the Court exercises its discretion to address the merits. It is careful, however, to characterize this as driven by “highly unusual” and “extraordinary” circumstances, not as a general erosion of standing requirements.

Justice Kruger, concurring, agrees that this limited merits review is appropriate “to the extent necessary to address the ‘cloud’” created by the Court of Appeal’s ruling. But she would then stop, reverse on statutory‑interpretation grounds, and decline to resolve broader constitutional questions until a proper plaintiff with standing comes forward.

B. The Pronouns Provision as Regulation of Discriminatory Conduct

1. The Statutory Scheme and Legislative Findings

The LGBT Long‑Term Care Residents’ Bill of Rights (Stats. 2017, ch. 483) responds to a legislative record documenting pervasive discrimination against LGBT seniors in long‑term care settings. Existing civil rights laws—most notably:

The Unruh Civil Rights Act (Civ. Code, § 51 et seq.),
The Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), and
The Residential Care Facilities for the Elderly statute (Health & Saf. Code, § 1569.269),

already prohibit discrimination based on sexual orientation, gender identity, and gender expression in public accommodations, housing, and certain residential care settings. But the Legislature found that “their promise has not yet been fully actualized in long‑term care facilities.” (Stats. 2017, ch. 483, § 1, subd. (e).)

Citing studies of LGBT seniors, the Legislature found:

High rates of isolation, poor physical and mental health, and lack of family support;
Documented fears of accessing services, with nearly half reporting discrimination in the prior year;
Mistreatment in long‑term care, including:
- Refusal of admission or readmission;
- Abrupt discharge;
- Verbal and physical harassment by staff;
- Refusal to accept medical powers of attorney from same‑sex spouses or partners;
- Discriminatory visitation restrictions; and
- Refusal to use a transgender resident’s preferred name or pronouns.

Against that backdrop, Health & Safety Code section 1439.51(a) declares it unlawful for a long‑term care facility or its staff to take specified “actions” against residents “wholly or partially on the basis of” the resident’s actual or perceived sexual orientation, gender identity, gender expression, or HIV status. These actions include:

Denying admission, transfer, or discharge (subd. (a)(1));
Denying roommate requests (subd. (a)(2));
Assigning rooms inconsistent with a transgender resident’s gender identity (subd. (a)(3));
Restricting bathroom access or harassing residents over bathroom use (subd. (a)(4));
Willfully and repeatedly failing to use the resident’s preferred name or pronouns after clear notice (subd. (a)(5));
Denying residents the right to wear clothing, accessories, or cosmetics permitted for others (subd. (a)(6));
Restricting association or consensual sexual relations in a discriminatory fashion (subd. (a)(7)); and
Denying or restricting medically appropriate care, or providing care in a demeaning way (subd. (a)(8)).

A separate section requires facilities to record each resident’s gender identity, correct name, and pronoun, “as indicated by the resident.” (Health & Saf. Code, § 1439.52.) Another protects privacy regarding sexual orientation and transgender status, tying it to HIPAA, the Confidentiality of Medical Information Act, and the state constitutional right of privacy. (Id., § 1439.53.)

Enforcement of these substantive rights is handled through pre‑existing enforcement provisions governing health facilities, long‑term health facilities, and residential care facilities for the elderly (Health & Saf. Code, § 1439.54), which include:

Civil penalties and administrative sanctions, such as fines and license suspension or revocation; and
In extreme cases, potential misdemeanor criminal liability for “willful or repeated” violations, subject to carefully specified sentencing factors and a narrow definition of “willfully.” (Id., §§ 1290, subds. (c)–(d); 1569.40, subd. (a).)

2. The Court of Appeal’s Approach: Content‑Based Speech Restriction

The Court of Appeal in Taking Offense saw the pronouns provision as a classic content‑based regulation of speech, citing Reed v. Town of Gilbert (2015) 576 U.S. 155. It reasoned that:

Whether the law applies turns on the content of words—specifically, whether staff use the resident’s preferred name or pronouns.
It thus “targets speech based on its communicative content” and “applies to particular speech because of the topic discussed or the idea or message expressed.” (66 Cal.App.5th at p. 709.)
Under Reed, any content‑based regulation of noncommercial speech is presumptively unconstitutional and subject to strict scrutiny.

Although the Court of Appeal accepted that the State had a compelling interest in preventing discrimination against LGBT residents, it held the law was not narrowly tailored. It focused on what it perceived as overbreadth: the statute purportedly “criminaliz[ed] even occasional, isolated, off-hand instances of willful misgendering” that:

Might occur outside the resident’s presence;
Need not have “a harassing or discriminatory effect” on the resident’s access to care; and
Could be enforced via criminal as well as civil penalties.

Because the Court of Appeal saw the statute as covering much speech that did not–in its view–rise to the level of discrimination or harassment “as those terms are legally defined,” it invalidated the provision on its face and did not reach other constitutional issues.

3. The Supreme Court’s Reframing: Discriminatory Conduct, Not Protected Speech

The Supreme Court rejects the Court of Appeal’s framing. Drawing on a long line of cases, it emphasizes the distinction between:

Laws that regulate the communicative content of speech, which typically trigger heightened First Amendment scrutiny; and
Laws that regulate conduct, even where that conduct is carried out in part through words, which generally do not trigger such scrutiny.

Key building blocks include:

Giboney v. Empire Storage & Ice Co. (1949) 336 U.S. 490, 502: “It has never been deemed an abridgment of freedom of speech … to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language…”
Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) 547 U.S. 47, 62: A law requiring law schools to host military recruiters “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” A ban on discrimination that forces an employer to remove a “White Applicants Only” sign is analyzed as regulating conduct, not speech.
R.A.V. v. St. Paul (1992) 505 U.S. 377, 389–390: While the Court invalidated an overbroad bias‑motivation ordinance, it recognized that laws directed at conduct, like Title VII’s ban on discrimination, may “incidentally” sweep in words (e.g., sexually derogatory epithets) without offending the First Amendment.
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: Title VII recognizes hostile environment harassment, including purely verbal conduct, as a form of employment discrimination.
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121 (plur. opn.): This Court upheld an injunction against a supervisor’s persistent use of racial epithets that violated the FEHA, treating Title VII/FEHA hostile environment rules as permissible regulation of discriminatory conduct, not as prior restraints on protected speech.

Building on these precedents, the Court in Taking Offense concludes that the pronouns provision:

Is “simply one aspect of an overall legislative scheme directed at barring various forms of discriminatory conduct in the unique long‑term care facility setting.”
Targets “actions taken wholly or partially on the basis” of a resident’s protected characteristic, including a pattern of misgendering that functions as harassment, not mere stray words.
Regulates staff in their professional caregiving role, not their personal or off‑duty expression; it leaves them free to voice their views about gender “in any otherwise lawful manner” outside the prohibited conduct.

Thus, the Court holds that the pronouns provision “should be analyzed, and upheld, as a regulation of discriminatory conduct that incidentally affects speech,” and “should not be subject to First Amendment scrutiny as an abridgment of the freedom of speech.”

4. Importing Hostile Environment Standards

To define the boundary between proscribed discrimination and protected expression, the Court analogizes directly to hostile environment doctrine under Title VII and fair housing statutes:

Conduct must be “sufficiently severe or pervasive to alter the conditions” of the environment and create “an objectively hostile or abusive” environment that a reasonable person in the victim’s position would find hostile. (See Harris, 510 U.S. at p. 21; Oncale, 523 U.S. at pp. 81–82.)
The victim must “subjectively perceive the environment to be abusive.” (Harris, at p. 21.)
All circumstances matter, including the setting and the relationships among the parties.

The Court reads section 1439.51(a)(5) through this lens. It emphasizes that:

Liability attaches only when staff “willfully and repeatedly” fail to use a resident’s preferred name or pronouns after being clearly informed, and do so “wholly or partially” because of the resident’s sexual orientation, gender identity, gender expression, or HIV status.
“Willfully” implies not genuine confusion or initial difficulty with unfamiliar pronouns, but intentional, knowing refusal motivated by the protected characteristic.
“Repeatedly” is not mere “more than once” in isolation; in context, it denotes patterned behavior that, especially in the long‑term care environment, can reasonably create a hostile or abusive atmosphere for the resident.

The Court gives concrete applications:

The statute is violated when staff, within the resident’s hearing or sight, persistently misgender the resident after clear notice, and the resident reasonably perceives this as abusive.
The statute is also violated when staff misgender the resident outside the resident’s presence—e.g., with other staff or residents—but the resident becomes aware of the pattern and reasonably perceives it as abusive, contributing to a hostile environment.
By contrast, a single slip of the tongue, or infrequent misstatements by a staff member earnestly attempting to adapt to the resident’s pronouns, will not qualify as “willful” or “repeated” discrimination.

The Court notes that federal employment and housing decisions have recognized that harassment need not occur within the victim’s direct hearing; conduct about the person, of which the person becomes aware, can still contribute to a hostile environment. (E.g., Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1095.)

5. Scope Limits: Place, Role, and Audience

The Court also construes the statute’s geographic and functional scope narrowly:

The prohibition applies only to “long-term care facilities” (a defined set of licensed entities) and “facility staff” acting in their job capacity.
It governs conduct that occurs on the facility campus, including both interior and exterior grounds, and in facility‑related communications (including resident records).
It does not reach staff expression that occurs:
- Off‑duty and off‑premises;
- In other roles (e.g., academic writings, public advocacy) unrelated to their caregiving job; or
- About residents in contexts where the resident is neither present nor aware.

Thus, the law is “carefully calibrated” and “does not reach conduct or expression that occurs outside the campus of a long‑term residential care facility, and which also is outside the business‑related role of its staff.”

6. Captive Audience and the Home/Medical Context

Both the majority and the Chief Justice’s concurrence rely heavily on captive audience doctrine to explain why harassment in long‑term care facilities is particularly harmful and why the State’s interest is especially strong.

Supreme Court cases have long recognized that the government may regulate or limit otherwise protected speech to protect unwilling listeners who have no reasonable means of escape, especially in:

The home: Rowan v. Post Office Dept. (1970) 397 U.S. 728 (upholding content‑based opt‑outs for unwanted mail); FCC v. Pacifica Foundation (1978) 438 U.S. 726 (upholding broadcast indecency sanctions given children in the home).
Residential streets: Frisby v. Schultz (1988) 487 U.S. 474 (upholding ban on targeted picketing in front of a particular home).
Medical facilities: Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753; Hill v. Colorado (2000) 530 U.S. 703 (upholding buffer zones and limits on “counseling” near clinic entrances to protect patients’ access and privacy).

These cases emphasize that patients and residents are often under “emotional strain and worry,” that their “physical and psychological well‑being” is at stake, and that they cannot reasonably be expected to undertake “Herculean efforts” to escape unwanted speech in such settings.

The concurrence in Aguilar likewise treated employees subject to racial epithets in the workplace as a kind of captive audience: people “not reasonably free to walk away” or change jobs easily, so the state’s interest in protecting them justifies some limits on employers’ and supervisors’ speech.

The Court in Taking Offense applies these principles to long‑term care residents:

They reside in facilities that are simultaneously their homes and medical settings.
They are often physically or cognitively impaired, and deeply dependent on staff for basic intimate care.
They cannot realistically relocate in response to staff misbehavior or simply “avert their eyes” or “walk away” from repeated misgendering.

This captive audience context both:

Explains why repeated misgendering can reasonably be deemed “severe or pervasive” harassment even if a single instance might not be; and
Bolsters the strength of the State’s interest in preventing such conduct as part of ensuring safe and effective delivery of medical and personal care.

7. Distinguishing Compelled Speech and Expressive Association Cases

The Court addresses several recent high‑profile First Amendment decisions that have invalidated applications of anti‑discrimination laws:

303 Creative LLC v. Elenis (2023) 600 U.S. 570: Held that a state public accommodations law could not compel a website designer to create custom wedding sites for same‑sex couples, because the designer’s services were “pure speech” expressing her own message about marriage.
Hurley v. Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557: Held that parade organizers could not be forced under a public accommodations law to include an LGBT group whose presence would alter the organizers’ own expressive message.
Boy Scouts of America v. Dale (2000) 530 U.S. 640: Held that the Boy Scouts could not be forced under a public accommodations law to accept a gay scoutmaster where doing so would force them to send a message contrary to their asserted values.

The Court distinguishes these cases on multiple grounds:

303 Creative and Hurley involved creative or expressive enterprises engaged in public communication: parades and custom websites that voiced the speaker’s own message in a “marketplace of ideas.”
Boy Scouts involved forced inclusion in a private expressive association, turning on the organization’s own autonomy and the message conveyed by its membership.
Here, by contrast, the pronouns rule concerns professional conduct of caregivers in an institutional setting, not their creation of expressive works or the composition of a private expressive group.
The statute does not require staff to praise transgender identity or to affirm any contested ideology; it simply forbids a particular mode of discriminatory conduct (willful, repeated misgendering) that undermines residents’ rights and health.

The Court also notes that subsequent Supreme Court cases, such as Rumsfeld, clarify that Boy Scouts does not create a broad exemption for any association that makes expressive claims; instead, a speaker cannot “erect a shield” against neutral regulations simply by asserting that compliance would impair its message.

8. The Role of Free Speech Coalition v. Paxton

After oral argument, the U.S. Supreme Court decided Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461, upholding a Texas law requiring age verification on commercial pornography websites. The case is relevant because the Supreme Court:

Rejected the argument that the law was subject to strict scrutiny merely because it targeted sexually explicit content; and
Applied intermediate scrutiny to a law that regulated some unprotected speech (obscenity as to minors) but incidentally burdened adults’ protected access to sexual materials, concluding the law was appropriately tailored.

In supplemental briefing, the parties debated the impact of Free Speech Coalition. The California Supreme Court ultimately reasons that:

Free Speech Coalition applies a two‑step framework: if a law primarily regulates unprotected activity but incidentally burdens protected speech, intermediate scrutiny applies; if it directly regulates protected speech on the basis of content, stricter rules might apply.
The pronouns provision, properly characterized, does not regulate protected speech at all; it targets unprotected discriminatory conduct (harassment) that the Court analogizes to Title VII hostile environment cases.
Thus, Free Speech Coalition “does not bear on the present matter.”

However, the Court adds that even if one assumed intermediate scrutiny applied, the pronouns rule would pass:

It advances “important governmental interests unrelated to the suppression of free speech,” namely the health, safety, dignity, and non‑discriminatory treatment of a medically vulnerable captive population.
It does not “burden substantially more speech than necessary”: it is limited to willful, repeated misgendering on the basis of protected characteristics, in a specific institutional context, and leaves caregivers ample alternative channels to express their views elsewhere.

The Court also notes that Free Speech Coalition emphasized the “traditional [and] widespread” nature of age‑verification laws. Similarly, non‑discrimination and anti‑harassment laws like Title VII, FEHA, and public accommodations statutes are “commonplace” and long‑accepted tools of civil rights enforcement; they should not lightly be assumed unconstitutional without clear guidance from the U.S. Supreme Court.

9. Criminal Enforcement Does Not Render the Statute Facially Invalid

Plaintiff argued that the possibility of criminal prosecution—misdemeanors carrying fines and potential jail time—makes the statute especially chilling and unconstitutional, citing Ashcroft v. ACLU (2004) 542 U.S. 656’s concerns about “severe criminal penalties” attached to content‑based speech regulations.

The Court responds with a detailed review of the enforcement framework:

Violations of the LGBT Long‑Term Care Residents’ Bill of Rights are enforced primarily through civil and administrative mechanisms: citations, fines, and license discipline for facilities and responsible staff.
Criminal liability arises only under pre‑existing health facility statutes when a person “willfully or repeatedly violates” the governing chapters or regulations relating to long‑term facilities. (Health & Saf. Code, §§ 1290, subd. (c); 1569.40, subd. (a).)
Sentencing courts must consider factors such as:
- Whether the violation exposed the patient to risk of death or serious physical harm;
- Whether it had a direct or immediate relationship to the patient’s health, safety, or security;
- Evidence of willfulness;
- The number of repeated violations; and
- Good faith efforts to prevent violations.
“Willfully” is specifically defined to require that the person intend the act or omission and know the relevant circumstances. (Id., § 1290, subd. (d).)

Given these constraints, the Court concludes:

Criminal prosecution is reserved for “the most egregious circumstances”, typically where misbehavior directly threatens residents’ health or safety.
Criminal liability for individual staff is not automatic; civil and administrative remedies will ordinarily suffice.
Entity defendants can be fined but not imprisoned.

Accordingly, the mere possibility of criminal enforcement in extreme cases does not make the pronouns provision facially invalid. The Court leaves open the possibility of as‑applied challenges should an actual criminal prosecution involve marginal or non‑harassing conduct.

C. Chief Justice Guerrero’s Separate Concurrence: Survival Even Under Strict Scrutiny

Chief Justice Guerrero writes separately to address the scenario the Court of Appeal assumed: that Reed requires treating the pronouns rule as a content‑based regulation of speech and applying strict scrutiny. She explains why, even under that demanding standard, the law is constitutional.

1. Framing the Compelling Interest

The concurrence criticizes the Court of Appeal’s formulation of the State’s interest as merely “eliminating discrimination on the basis of sex” as too general. Under strict scrutiny, the level of generality matters; courts should focus on the specific interest served by the particular regulation.

In this case, the compelling interest is framed as:

“Advancing a fundamental public health concern by protecting the rights of long‑term care residents to be free from discrimination that targets a legally protected characteristic, when that conduct is committed by the staff of a long‑term care facility, whose job is to provide and support medical treatment and intimate personal care, thereby promoting an environment conducive to such care.”

This formulation is grounded in:

The Legislature’s findings about LGBT seniors’ fear of accessing care and documented mistreatment;
Amicus evidence that discrimination and misgendering are associated with higher rates of depression, suicidal ideation, and avoidance of medical care among transgender adults; and
Professional standards and federal regulations requiring long‑term care staff to treat residents with dignity and to address them by the names and pronouns of their choice.

The concurrence notes that even a legislature that shared plaintiff’s “gender essentialist” view could reasonably conclude that a misgendering prohibition is necessary as a clinical standard of care in long‑term facilities to ensure safe, effective medical and personal care.

2. Captive Audience Doctrine and Interest Strength

The concurrence elaborates on the captive audience doctrine, surveying Rowan, Pacifica, Frisby, Madsen, and Hill. It highlights that the Supreme Court has:

Allowed content‑based limitations on unwanted mail to the home;
Condemned indecent radio broadcasts during times children might be listening at home;
Upheld targeted residential picketing bans on public streets; and
Approved buffer zones and counseling restrictions near medical facilities.

These cases recognize that:

The right “to be let alone” is “the most comprehensive of rights and the right most valued by civilized men.”
The State’s interest is particularly strong where the unwilling listener is at home or at a medical facility, and “powerless to avoid” the speech.

By analogy, long‑term care residents — especially LGBT seniors — are paradigmatic captive listeners. They cannot reasonably avoid staff speech in their own rooms or community spaces, nor can they easily change facilities. This bolsters the compelling nature of the State’s interest in shielding them from targeted, discriminatory misgendering by caregivers.

3. Narrow Tailoring and Least Restrictive Alternatives

The concurrence then applies the core strict scrutiny requirements:

Narrow tailoring: The law need not be “perfectly tailored” but must not be overinclusive relative to the interest; and
Least restrictive means: No equally effective, less speech‑restrictive alternative should be available.

On narrow tailoring, the concurrence emphasizes:

“Willfully” excludes inadvertent misstatements or honest confusion.
“On the basis of” imports a discriminatory motivation requirement analogous to “because of” in discrimination law.
“Repeatedly” requires more than isolated missteps; in context, it signals persistent behavior reasonably understood as harassment.
The law is limited to the long‑term care setting and to staff acting in their caregiving roles.
The Court’s hostile‑environment construction (requiring objective severity/pervasiveness and subjective perception of abusiveness) ensures that only conduct amounting to true harassment or discrimination is reached.

On alternatives, plaintiff suggested:

Limiting the rule to direct communications with residents (excluding speech to others about residents);
Relying solely on employment law (e.g., FEHA) and its administrative complaint processes;
Voluntary staff assignments whereby only willing employees interact with residents who request certain pronouns; or
Hiring only employees who agree, ex ante, to comply with the pronouns rule.

The concurrence explains why each is inadequate:

Harassment outside a resident’s presence can still create a hostile environment once the resident becomes aware; excluding such conduct would undercut the law’s effectiveness.
FEHA processes are burdensome and ill‑suited to protect frail elders who may be reluctant or unable to file administrative claims or lawsuits; they also do not directly bind facilities as residences.
Voluntary assignments and hiring screens could leave some residents with no qualified staff willing to attend them, undermining the State’s interest in reliable, non‑discriminatory care. In emergencies, waiting to locate a “willing” employee is not a realistic option.

Thus, the concurrence concludes that the pronouns provision is narrowly tailored and that plaintiff has not identified any equally effective but less restrictive alternative.

D. Justice Kruger’s Concurrence: Narrow Reversal Based on Statutory Interpretation

Justice Kruger, joined by Justice Liu, agrees that:

Section 526a does not confer standing to sue the State;
Common‑law taxpayer standing does not obviously cover this type of First Amendment challenge to state legislation; and
Under the unusual posture created by the Court of Appeal’s published invalidation, it is appropriate to address the merits to the limited extent needed to remove the “cloud.”

However, she would:

Reverse the Court of Appeal’s decision solely on the ground that it misconstrued section 1439.51(a)(5); and
Decline to resolve additional constitutional questions—e.g., whether the provision regulates conduct or speech, what level of scrutiny applies, and how to apply federal cases like Reed—in the absence of a plaintiff with standing.

In her view, the Court of Appeal’s error is straightforward: it assumed the statute prohibits even isolated instances of misgendering that are not severe or pervasive enough to amount to harassment or discrimination. Once the statute is properly interpreted, in line with Title VII and Aguilar, to target only conduct amounting to actionable discrimination, the basis for the Court of Appeal’s facial invalidation disappears.

Justice Kruger emphasizes the importance of prudential standing and constitutional avoidance. In the realm of constitutional review of legislation, where decisions are hard to change and can have broad, lasting effects, she urges restraint: “if judicial precedents are to be disturbed only rarely, they should be rendered only when necessary, and with as much context and information as circumstances allow.”

IV. Precedents Cited and Their Influence

A. Standing and Taxpayer Suits

Winn v. Shaw (1891) 87 Cal. 631: Early recognition of common‑law local taxpayer standing to enjoin illegal county expenditures.
Former Code Civ. Proc., § 526a (1909): Statutory taxpayer action against officers of “county, town, city or city and county.”
Ahlgren v. Carr (1962) 209 Cal.App.2d 248; California State Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390: Recognized common‑law taxpayer suits against state officers, without citing section 526a.
Blair v. Pitchess (1971) 5 Cal.3d 258; Serrano v. Priest (1971) 5 Cal.3d 584; Adams (1974) 11 Cal.3d 146; Stanson v. Mott (1976) 17 Cal.3d 206: Misread Ahlgren/Williams as interpreting section 526a and extended the statute to state officials.
Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241: Clarified what types of taxes suffice for section 526a standing and prompted the 2018 legislative amendment.
Code Civ. Proc., § 526a (2018 amendment): Introduced the “local agency” definition now central to the Court’s holding.

B. First Amendment, Anti‑Discrimination, and Captive Audience

Reed v. Town of Gilbert (2015) 576 U.S. 155: Established that content‑based regulations of speech are “presumptively unconstitutional” and generally trigger strict scrutiny.
R.A.V. v. City of St. Paul (1992) 505 U.S. 377: While invalidating a biased ordinance, recognized that laws directed at conduct (like discrimination) may incidentally reach content‑specific speech.
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 (1998) 523 U.S. 75: Defined hostile work environment harassment under Title VII.
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121: Upheld an injunction barring racial epithets in the workplace as a remedy for FEHA violations; plurality saw harassment as unprotected discriminatory conduct; concurrence relied on captive audience and time/place/manner analogies.
Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) 547 U.S. 47: Upheld a law conditioning federal funds on law schools allowing military recruitment, distinguishing regulation of conduct from speech.
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: Developed captive audience doctrine in the home and medical contexts.
Hurley v. Irish‑American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) 515 U.S. 557; Boy Scouts of America v. Dale (2000) 530 U.S. 640; 303 Creative LLC v. Elenis (2023) 600 U.S. 570: Protected expressive autonomy of parade organizers, private associations, and creative professionals against certain applications of anti‑discrimination laws.
Free Speech Coalition, Inc. v. Paxton (2025) 606 U.S. 461: Upheld age‑verification requirements for adult websites under intermediate scrutiny where law regulated unprotected speech to minors but incidentally burdened adults’ speech.
Ashcroft v. ACLU (2004) 542 U.S. 656: Emphasized the dangers of content‑based criminal prohibitions with “severe criminal penalties” and the need for less restrictive means.

V. Impact and Future Implications

A. Taxpayer and Public Interest Litigation in California

Taking Offense reshapes the landscape for taxpayer and public interest suits in California in several ways:

Section 526a is now clearly limited to “local agencies.” Plaintiffs may no longer rely on it to sue the State or statewide officers. Test‑case organizations seeking to challenge state‑level statutes or state agency practices must show some other basis for standing (e.g., direct injury, common‑law taxpayer standing if it survives, or other public interest doctrines).
Common‑law taxpayer standing is left unresolved. The Court’s explicit invitation to the Legislature and Law Revision Commission signals that changes are likely. Options include codifying a narrow version of common‑law state‑level taxpayer standing, abolishing it, or integrating it into a revised section 526a with clear limits.
Public interest standing remains uncertain. The Court specifically declines to decide whether plaintiff has “public interest” standing, leaving the doctrine underdeveloped at the state level.
Exception for extraordinary circumstances. The Court’s willingness to address merits despite lack of standing is expressly tied to the rare facts of a published Court of Appeal decision invalidating a statute on its face. It is unlikely to open the door to routine merits decisions without standing.

In the short term, we can expect:

More lawsuits grounded in direct injury by regulated entities or individuals, rather than taxpayer organizations, when challenging statewide regulations or statutes.
More litigation over the scope and survival of common‑law taxpayer standing, especially in cases like Raju where review is pending.
Legislative proposals clarifying who can sue the State and its officers for allegedly illegal expenditures.

B. LGBTQ+ Rights and Long‑Term Care Regulation

On the substantive civil rights front, the decision is a strong affirmation of:

The legitimacy of pronoun protections as a component of anti‑discrimination law in institutional settings; and
The State’s authority to treat intentional misgendering by caregivers as a form of harassment or discriminatory conduct, not as constitutionally protected speech.

Specific implications include:

Long‑term care facilities. Facilities must ensure staff compliance with residents’ preferred names and pronouns after clear notice, as part of their obligations under state law and federal regulations. Policies, training, and enforcement mechanisms will need to align with the Court’s hostile‑environment framework.
Broader health care settings. Although the opinion is formally limited to long‑term care as defined by statute, its reasoning—especially its emphasis on the clinical and psychological impacts of misgendering—may be invoked to support similar protections in hospitals, hospices, and possibly other institutional contexts (e.g., shelters, prisons), subject to distinct statutory frameworks and practical considerations.
Intersection with religious and conscience claims. The decision does not directly address religious freedom issues in detail (the trial court had rejected them; the Court of Appeal did not reach them; the Supreme Court does not discuss them at length). However, by classifying misgendering as discriminatory conduct in the caregiving context, the opinion suggests that general duty‑to‑treat rules for licensed caregivers will not easily yield to conscience‑based refusals.

C. First Amendment Doctrine in California Courts

Taking Offense signals how the California Supreme Court is likely to approach future conflicts between anti‑discrimination measures and free speech:

Reed’s reach is context‑dependent. The Court cautions against mechanically applying Reed’s strict scrutiny whenever a law is triggered by words. It preserves space for recognizing conduct‑regulating laws that incidentally involve speech (e.g., harassment, threats, discriminatory refusals of service).
Hostile environment as conduct. The Court doubles down on the R.A.V. / Harris / Aguilar line: hostile environment harassment rules, even when they focus on words like slurs or misgendering, are conceptually about discriminatory conduct, not viewpoint suppression.
Captive audience and vulnerability matter. The opinion gives significant weight to the nature of the audience and context (home/medical/care facility) in assessing both the gravity of harm and the strength of the State’s interest.
Careful statutory construction to avoid overbreadth. The Court’s willingness to read “willfully and repeatedly” and “on the basis of” narrowly—and to incorporate hostile‑environment standards—reflects a preference for interpretations that minimize constitutional concerns while preserving legislative purpose.

At the same time, the Court is sensitive to eventual federal review:

It cites, and seeks to harmonize with, recent U.S. Supreme Court authority including Free Speech Coalition and 303 Creative.
It avoids extending the conduct‑regulation rationale beyond the specific long‑term care setting and the narrow pronouns provision.

Future disputes—particularly if they arise in more traditional public‑forum contexts or involve more overtly ideological expression—may well trigger different analyses and possibly stricter scrutiny.

VI. Simplifying Key Legal Concepts

A. Facial vs. As‑Applied Challenges

A facial challenge asserts that a law is invalid in all or almost all of its applications, based solely on its text and structure. To succeed, the challenger must show invalidity in the “generality” or “vast majority” of cases.
An as‑applied challenge concedes that the law might be valid in many situations but claims that its application to the challenger’s specific conduct is unconstitutional.
Taking Offense is a facial challenge to the pronouns provision. The Court concludes that the plaintiff has not carried the heavy burden of showing that the law is invalid in the vast majority of its potential applications.

B. Taxpayer Standing Under Section 526a

“Standing” refers to who is allowed to bring a lawsuit. Section 526a historically allowed a person who paid local taxes to sue to prevent illegal or wasteful local government expenditures, even if they were not uniquely harmed.
After the 2018 amendment, section 526a applies only to “local agencies” (cities, counties, districts, etc.), not to the State or statewide agencies.
Whether a similar taxpayer standing right exists at common law (independent of the statute) for suits against the State remains an open question.

C. Content‑Based Laws and Levels of Scrutiny

A law is content‑based if it applies because of the topic, idea, or message expressed. Under Reed, such laws usually trigger strict scrutiny, requiring a compelling interest and narrow tailoring.
Intermediate scrutiny (as in Free Speech Coalition) applies where a law regulates unprotected speech or conduct but incidentally burdens protected speech; it requires an important interest and no more speech burden than necessary.
Taking Offense holds that the pronouns rule is best treated as regulating discriminatory conduct, not protected speech, and thus does not trigger either form of heightened scrutiny. The concurrence shows that even if strict scrutiny applied, the law would survive.

D. Hostile Environment Harassment

Under Title VII and analogous laws, harassment is unlawful when it is:
- Objectively severe or pervasive enough that a reasonable person in the victim’s position would find the environment hostile or abusive; and
- Subjectively perceived as hostile or abusive by the victim.
Harassment can be purely verbal (e.g., slurs, misgendering) and does not require physical assault or economic harm.
In Taking Offense, the Court essentially imports this framework to long‑term care facilities: repeated, willful misgendering motivated by a protected characteristic, in a context where residents are captive and dependent, can create a hostile environment.

E. Captive Audience Doctrine

Normally, people who encounter offensive speech in public can be expected to look away, walk away, or ignore the message.
But where an audience is captive—for example, people in their homes, patients in clinics, or employees at work—the law sometimes allows greater limits on speech to protect privacy, dignity, and access to essential services.
Long‑term care residents are a classic captive audience; they cannot readily choose different staff, move facilities, or avoid repeated contact with caregivers.

VII. Conclusion

Taking Offense v. State of California is a consequential decision on two fronts.

First, it recalibrates taxpayer standing in California. By holding that section 526a, as amended, is limited to “local agencies,” the Court corrects decades of doctrinal drift that had extended the statute to state‑level defendants without textual grounding. At the same time, it leaves open the fate of common‑law taxpayer standing and explicitly invites legislative intervention to bring coherence to the field.

Second, it provides a carefully reasoned defense of pronoun protections for LGBT residents in long‑term care facilities. By classifying willful, repeated misgendering by caregivers as discriminatory conduct that creates a hostile environment for a captive and medically vulnerable population, the Court:

Brings California doctrine into alignment with federal Title VII and fair housing harassment jurisprudence;
Distinguishes recent compelled speech and expressive association decisions like 303 Creative and Hurley; and
Clarifies that, in this limited institutional context, the First Amendment does not confer a right on caregivers to harass residents under the guise of free expression.

Chief Justice Guerrero’s concurrence further secures the statute’s footing by demonstrating that it would survive even under strict scrutiny, given the compelling interest in the health, safety, and dignity of long‑term care residents and the statute’s narrow tailoring. Justice Kruger’s concurrence, meanwhile, is a reminder of the importance of standing and constitutional avoidance, counseling caution in reaching broader constitutional questions absent a proper plaintiff.

Going forward, Taking Offense will likely be cited both in standing disputes about who may challenge state action in California courts, and in First Amendment litigation at the intersection of civil rights and speech, especially in institutional settings where vulnerable populations are effectively captive. It underscores that equality norms and free speech values can coexist, but where the law seeks to prevent discrimination in the delivery of critical care to captive, marginalized groups, anti‑harassment rules will often—and properly—be treated as regulations of conduct, not as censorship of ideas.

Taxpayer Standing After the 2018 Amendment and Pronoun Protections in Long‑Term Care: A Commentary on Taking Offense v. State of California (Cal. Supreme Ct. 2025)