The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Taking Offense v. California, decided yesterday by the California Court of Appeal, in an opinion by Justice Elena Duarte, joined by Justices Harry Hull and Ronald Robie, the court considered (among other things) the constitutionality of Cal. Health & Safety Code § 1439.51(a)(5) which provides, in part,
[I]t shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person's … gender identity[ or] gender expression …: Willfully and repeatedly fail to use a resident's preferred name or pronouns after being clearly informed of the preferred name or pronouns." …
The court concluded the pronoun portion of the law was a content-based speech restriction (it didn't discuss the name portion in detail):
Applying Reed v. Town of Gilbert (2015), the pronoun provision is content based on its face because it draws a distinction between what is and what is not permissible based on the content of what is said. If an employee's speech repeatedly and willfully misgenders [i.e., systematically misuses the preferred pronouns of] a long-term care facility resident, the speech is criminalized. If an employee's speech does not misgender a resident, or if the employee misgenders the resident only once or unintentionally, the speech is not criminalized. To determine whether an employee has violated the pronoun provision, an enforcement authority must analyze the content of the speech (McCullen v. Coakley (2014) [law is content based where it requires enforcing authority to analyze the content of the speech]) and determine whether the content of the speech runs afoul of the law. Moreover, the Legislature's purpose in enacting the law was to prohibit staff from willfully and repeatedly misgendering a resident due to the harassing, discriminatory, or insulting nature of that speech; in other words, its communicative effect….
[T]he Attorney General argues the law is content neutral because it does not dictate speech; employees remain free to avoid using the pronouns at issue entirely…. [But] "the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." For purposes of the First Amendment, there is no difference between a law compelling an employee to utter a resident's preferred pronoun and prohibiting an employee from uttering a pronoun the resident does not prefer….
[T]he Attorney General [also] contends the restriction on speech is content neutral because pronouns are merely stand-ins for nouns and are not ideological messages. But the Legislature understood the importance of pronouns' content and, thereby, their meaning, in this context, to the point that it passed a law criminalizing misgendering transgender residents of long-term care facilities.
We recognize that misgendering may be disrespectful, discourteous, and insulting, and used as an inartful way to express an ideological disagreement with another person's expressed gender identity. But the First Amendment does not protect only speech that inoffensively and artfully articulates a person's point of view. At the very least, willful refusal to refer to transgender persons by their preferred pronouns conveys general disagreement with the concept that a person's gender identity may be different from the sex the person was assigned at birth….
The Attorney General … contends the captive audience doctrine should be considered among the categories of speech subject to a standard requiring less than strict scrutiny. To address that issue, we briefly describe the captive audience doctrine.
Generally, listeners exposed to offensive speech are expected to avoid the speech if they are not receptive thereto. But in limited circumstances, "when an audience has no reasonable way to escape hearing an unwelcome message, greater restrictions on a speaker's freedom of expression may be tolerated." "The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience. But the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it."
In Frisby v. Schultz (1988), the high court recognized that the home is uniquely deserving of protections: " 'The State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.' [Citation.] Our prior decisions have often remarked on the unique nature of the home, 'the last citadel of the tired, the weary, and the sick,' [citation] and have recognized that '[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.' "
In Madsen v. Women's Health Center, Inc. (1994), the court recognized the state's strong interest in residential privacy applied by analogy to medical privacy, recognizing the substantial privacy interest in "not only the psychological, but also the physical, well-being of the [hospital] patient held 'captive' by medical circumstance." (See also Hill v. Colorado (2000) [upholding a buffer zone around clinic entrances due to the "unique concerns that surround health care facilities," where those using the facilities "are often in particularly vulnerable physical and emotional conditions"].) The high court has observed: " 'Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family … need a restful, uncluttered, relaxing, and helpful atmosphere.' "
Long-term care facility residents are analogous to citizens in their homes. There is little doubt that many—if not all—residents who have expressed a pronoun preference are an unwilling audience for repeated and willful misgendering, if it should occur, and they have little, if any, ability to simply avoid harassing or discriminatory speech.
However, while long-term care facility residents are similar to other captive audience listeners, the speakers in this case are distinguishable from speakers in other instances where the captive audience doctrine has been applied. Taking Offense asserts that both residents and employees of long-term care facilities are "captive audiences," and therefore the doctrine should not be applied to lessen the scrutiny given to laws that restrict the content of employees' speech and to compel them to host a message with which they may not agree. While we disagree with the characterization of employees as "captive audiences" and see no support for that characterization in the relevant jurisprudence, we recognize we must consider the legitimate speech interests of employees, who, like residents, are not readily able or expected to go elsewhere to express their views. While the residents are in what amounts to their own home, the employees are in their own workplace. Given the First Amendment rights of employees in their workplace, we decline to rely on the captive audience doctrine here to apply less than strict scrutiny….
The court therefore concluded that the law was unconstitutional unless it was narrowly tailored to a compelling interest, and held that this test wasn't met here:
We agree with the Attorney General that the state has a compelling interest in eliminating discrimination on the basis of sex. The high court has recognized that discrimination on the basis of "sex" includes discrimination on the basis of sexual orientation or transgender status. Our [state] Supreme Court has also recognized that the state has a compelling interest "in ensuring full and equal access to medical treatment irrespective of sexual orientation." …
[But] it is not enough for the government to identify a compelling interest. The government must also show the statute furthers the compelling interest and is "narrowly tailored to that end." To satisfy the narrow tailoring requirement in the case of a content-based speech restriction, the government must show the law is the least restrictive alternative of achieving the government interest. Included within the "least restrictive alternative" inquiry are the related components that the law must advance the government interest, must not be overinclusive, meaning the law may not restrict speech that does not implicate the government interest, and may not be underinclusive, meaning it fails to restrict a significant amount of speech harming the government interest to the same degree as the restrict[ed] speech.
The burden is on the government to prove proposed alternatives will not be as effective as the challenged statute. "In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving [the Legislature's] goal, regardless of the restriction it imposes.
"The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to ensure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve [the Legislature's] legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives." …
[W]e conclude the pronoun provision—whether enforced through criminal or civil penalties—is overinclusive in that it restricts more speech than is necessary to achieve the government's compelling interest in eliminating discrimination, including harassment, on the basis of sex. Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering—provided there has been at least one prior instance—without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct. Using the workplace context as an analogy, the statute prohibits the kind of isolated remarks not sufficiently severe or pervasive to create an objectively hostile work environment. There is no requirement in the statute that the misgendering at issue here negatively affect any resident's access to care or course of treatment. Indeed, there is no requirement that the resident even be aware of the misgendering.
We recognize the Legislature's legitimate and laudable goal of rooting out discrimination against LGBT residents of long-term care facilities. As the Legislature recognized, many LGBT seniors are members of multiple underrepresented groups, making them "doubly marginalized," causing them to avoid accessing necessary care and services. When those seniors do attempt to access care, they are often subject to mistreatment and discrimination by the very staff designated to care for them. As evidenced by the Legislature's findings, discrimination and mistreatment against LGBT seniors continues to have a pernicious effect on the ability and willingness of those individuals to obtain long-term care.
But the Attorney General has not shown that criminalizing occasional, off-hand, or isolated instances of misgendering, that need not occur in the resident's presence and need not have a harassing or discriminatory effect on the resident's treatment or access to care, is necessary to advance that goal….
Justice Robie joined the opinion, but added a concurrence:
I concur fully in the majority opinion but write separately to express further thoughts on the use of pronouns. One's name or the pronoun that represents that name is the most personal expression of one's self. To not call one by the name one prefers or the pronoun one prefers, is simply rude, insulting, and cruel. The impact of using inappropriate pronouns is even more offensive and hurtful when it occurs in an environment where one cannot choose the persons with whom one associates.
The Legislature recognized this fact (as recounted in the opinion) but unfortunately chose a prophylactic remedy to eliminate misuse of pronouns that just went too far. Instead of mandating that employers ensure the use of proper pronouns in the workplace, the Legislature unwisely made misuse of pronouns a crime. When we rule this law cannot stand, we do not reject the need for persons to use appropriate pronouns but, in my opinion, are suggesting that the Legislature fashion a workable means of accomplishing the laudable goal of the legislation….
I think a law framed in "hostile environment harassment" terms would pose its own First Amendment problems (see here for my discussion, based on several of my articles, of the closely related issue as to speech that offends coworkers). Still, this opinion struck me as significant and worth noting.