Free Speech

California Law Requiring "Gender Neutral" Toy Sections Likely Violates the First Amendment

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Here's the newly enacted statute:

55.7. The Legislature finds and declares both of the following:

(a) Unjustified differences in similar products that are traditionally marketed either for girls or for boys can be more easily identified by the consumer if similar items are displayed closer to one another in one, undivided area of the retail sales floor.

(b) Keeping similar items that are traditionally marketed either for girls or for boys separated makes it more difficult for the consumer to compare the products and incorrectly implies that their use by one gender is inappropriate.

55.8. (a) A retail department store that offers childcare items or toys for sale shall maintain a gender neutral section or area, to be labeled at the discretion of the retailer, in which a reasonable selection of the items and toys for children [defined as age 12 or younger] that it sells shall be displayed, regardless of whether they have been traditionally marketed for either girls or for boys.

(b) This section shall apply only to retail department stores that are physically located in California that have a total of 500 or more employees across all California retail department store locations. This section shall not apply to retail department stores that are physically located outside California….

(d) … (1) "Childcare item" means any product designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething….

I can't be sure—I know of no precedents that are squarely on point—but this seems to be unconstitutional. A retailer's speech about its products, even something as factual as price labeling, is generally protected treated as "commercial speech" (meaning commercial advertising) that's presumptively protected by the First Amendment. Expressions Hair Design v. Schneiderman (2017), for instance, held that a law allowing retailers to charge more for credit card transactions, but banning labeling such higher rates as surcharges (while allowing labeling lower cash rates as discounts), was a speech restriction.

"The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer," Expressions Hair Design held. "What the law does regulate is how sellers may communicate their prices." Likewise, the California law tells merchants nothing about the toys they may sell, but it does regulate how they communicate about the recommended gender for the toys. (Presumably the labeling of the section, though "at the discretion of the retalier," can't be "For Boys" or "For Girls"; and the retailer can't just have a "For Boys" section or "For Girls" section without a "For Everyone" section.)

And the Legislature is perfectly clear that it's trying to regulate this communication—gender-segregated displays, it concludes, "incorrectly impl[y] that [certain toys'] use by one gender is inappropriate." This sort of attempt to regulate commercial advertising because of the social viewpoint that it conveys seems to me unconstitutional. Cf. R.A.V. v. City of St. Paul (1992) ("[A] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion."); Matal v. Tam (2017) (lead opinion) ("[t]he Government has an interest in preventing speech expressing ideas that offend," such as "[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground," even as to commercial speech); Matal (concurring opinion) ("'[c]ommercial speech is no exception' … to the principle that the First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys"; "discrimination based on viewpoint, including a regulation that targets speech for its offensiveness, remains of serious concern in the commercial context"; "[t]o the extent trademarks qualify as commercial speech, they are an example of why that term or category does not serve as a blanket exemption from the First Amendment's requirement of viewpoint neutrality").

Nor can the law be justified as an attempt to protect consumers from discrimination. Consumers are always free, with or without the law, to buy whatever toys they want for their children, regardless of how the toys are arranged in the store.

By itself, the law is likely to do little: It doesn't ban "boys' toys" and "girls' toys" sections, but just requires "a gender neutral section" with "a reasonable selection of the items and toys for children that it sells." What's "a reasonable selection" seems vague, but I expect that most toy retailers already have plenty of toys that are generally of interest both to boys and girls—that was certainly my experience when kids were younger and I'd go to toy stores to buy things for them. (I don't have as much recollection of "childcare items" stores, but I'd expect the same is true for them.)

Still, once this sort of law is enacted, I expect the likely future steps will be to ban boys and girls sections altogether (since after all it is the presence of those sections, and not the absence of a gender-neutral section, that likely would, in the Legislature's views, "incorrectly impl[y] that [certain toys'] use by one gender is inappropriate"). And once some such restrictions on gender-based marketing are established, it becomes easier, in a legal system that's built on precedent and analogy, to argue for broader restrictions and indeed total bans. In any event, I'm inclined to say that if some toy store wants to challenge this (a big "if"), it seems likely that a court would indeed strike it down.

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    1. I’ve litigated cases that made Pittsburgh Press arguments. They didn’t succeed. Essentially, later cases have limited it to a narrow portion of its holding: that where the speech is itself the act of discrimination, it can be suppressed.

      But that’s definitely not true here. There’s no law, and likely can be no law, prohibiting what toys children play with or what gender roles they take on. (Indeed, the very people sponsoring this law would be aghast if such a law were proposed.) So offering a gendered toy or putting it in a gendered section (but one that any kid can shop in) isn’t an illegal discriminatory act like offering a job only to one sex would be. Pittsburgh Press, as narrowed by subsequent decisions, isn’t applicable here.

      1. I have not paid much attention to that case for many years, although at one strange point it changed my life. It seems reasonable to believe I wouldn’t be here without it.

  1. There are more than a few interesting bits in this law.

    1. Generally speaking, in these retailers, the toys aren’t broken down by gender in the aisles. It seems designed to basically not have changes.

    2. What’s interesting is that the law specifically doesn’t apply to children’s clothing. Those which ARE broken down by gender, quite predominantly. Why aren’t those included?

    3. Furthermore, if we’re really talking about gender orientation, doing it in the pre-puberty area isn’t the most relevant area. You’d really want to do it in the adult clothing area. A good gender neutral law would demand that the adult clothing section is made gender neutral, with no male or female sections.

    1. “the toys aren’t broken down by gender in the aisles”

      No, they’re broken down by the kids after the parents buy them.

      1. Need a like button.

        But like a timed edit button, to correct typos spotted after [Submit] within a reasonable edit window, we cant half the beast of all welds.

        1. There is a time lapse of approximately on onosecond between when you click on “Submit” and when you notice the typo you should have fixed. but the solution is the same regardless of how long it takes you to spot it… don’t be in such a hurry to click submit.

          1. Unfortunately the editor isn’t WYSIWYG if you use HTML tags for formatting so it’s really easy to miss a / in a closing tag or even an entire closing tag. Human proofreading of that sort of oversight is particularly problematic.

            Sometimes, if I’m using italics or another formatting feature such as bold, I will write the comment in a text editor (like emacs) and then view the result in a browser to verify I didn’t miss a tag somewhere. Of course, for a short post like this that’s not necessary so I don’t bother.

  2. Doesn’t the California legislature have anything better to do, any larger problems to solve?

    1. [W]hat we are seeing in America is a highly feminized, mutant form of fascism that is unconcerned with the practical aspects of governance and instead obsesses over the aesthetic and moral aspects or rule. The authorities of a century ago wanted to mobilize society to build things and advance their people. The modern authoritarians demand you wear your mask and respect the differently abled.

      In most of America, the things that one expects from government, like maintaining roads, are being ignored in favor of moral causes. State officials present highly choreographed presentations to let us know how much they care, but can’t be bothered to repair torn-up streets or broken-down schools. Instead of big public-works projects, gyno-fascism puts all of its energy into making sure everyone feels needed and safe.
      (source)

      1. gyno-fascism

        Jesus.

        1. “And kid, leave God out of this. He wants no part of what happens next.”

          -Riddick

      2. ” a highly feminized, mutant form of fascism”

        Gosh, it’s a shame Judy turned down your invitation to the prom, and Sandra told you to get lost, and Alice just laughed right in your face. But none of that makes the grade as “fascism”, mutant or not.

    2. This is the stuff you do when you can’t actually fix the big and complex problems precisely because they are so big and complex. You do this stuff, then go back to your constituents and say “See all the progress we made on this issue. Nobody else is so attentive to these little details as me.”

      1. If you really want to fix big and complex problems, you devote yourself to fixing all the little, simple problems. Half the time the big, complex problems will fix themselves if you do that, because they’re actually resting on a bunch of little, simple problems.

        1. True enough. But this isn’t even a problem, much less a simple one – yet the CA legislature is wasting time on it.

      2. Big problems take time to fix, and legislators only have a year to accomplish “something” so they can spend the next year campaigning for reelection on what they’ve “accomplished.” Lack of term limits means the cycle continues ad infinitum

    3. “Doesn’t the California legislature have anything better to do, any larger problems to solve?”

      They’d love to put the fires out, but they don’t have any water.

  3. Forget the first amendment. What about simple common sense?

    What would stop the legislature from demanding that dress shops have menswear in their retail space? And on an equal square footage basis?

    1. Darn, that’s what I was going to say.

      Stupidity is an equal opportunity affliction, affecting people in government regardless of political positions.

    2. Well, I would like a larger selection of kilts available for when I want to get in touch with my Scottish ancestry.

      1. “Well, I would like a larger selection of kilts available for when I want to get in touch with my Scottish ancestry.”

        Try shopping in Scotland.

  4. Glad to see commercial behavior properly identified as speech.

  5. Aside from the 1st Amendment, this highlights once again the utter incoherence of the concept of “gender” as it appears in woke theology.

    For this regulation is aimed squarely at “societyz gender” – ie the roles and expected behaviors that society allegedly norms for girls and boys – and seeks the dissolution of such gender norms and their replacement by an unnormed gender-world…..

    ……totally pulling the rug out from under “feelz-gender” – the desperate desire / need to allow your inner sense of gender to be expressed in such a way that the world will recognise you as having the gender you feel you are…..

    Thus California-style anti-“societyz gender” regulation must either :

    (a) succeed, and so diminish the stage for those who which to use society’s gender norms to assert their inner sense of gender, or

    (b) fail, and so demonstrate that “societz-gender” is not as arbitrarily socially constructed as the regulators assume

    Or more succinctly – these people are nuts.

    1. “Aside from the 1st Amendment, this highlights once again the utter incoherence of the concept of “gender” as it appears in woke theology.”

      You can choose to believe this, but what you choose to believe is YOUR theology.

      The point here is approximately 0% about gender politics.

  6. Without such stereotypes as guide rails, how will parents of transgender children know that their boys are “transgender girls”? It seems that playing into sex-based stereotypes is central to this type of story, this “coming out.” (“Billy only liked to play with dolls and loved frilly dresses–that’s how he knew he was a girl….”)

    Further: I guess since sexually dimorphic phenotypes no longer have any bearing on biological sex (Vagina does not equal Female) then our transgender brothers and sisters [sic] really don’t have any specific gender to aspire to, either–they just want to possess some type of outward physical appearance that they like (but we simply can’t call that appearance either male nor female, since those have no more meaning and are just “harmful stereotypes” themselves?).

    Am I getting all this right?

    1. “Am I getting all this right?”

      Not even close, but then you knew that.

  7. Freedom of speech has been circumscribed already. First, in business, for harrassment.

    Next, in schools, via threatened pulling of money.

    Now back to business, but dealing with walk-in customers? The people who scream respect culture seem all too ready to use the law to alter it. Some culture. Wearing of masks ok, unless it’s a burka, then outlawing it as a symbol of oppression of a hundred million women, no.

    And the Republicans are mad they didn’t think of it. They toyed with government-enforced culture under cover of business when they tried to stop companies voluntarily offering same sex partners benefits in the 1990s.

    So both sides, I would like to cordially invite you to get in a car and strap a famed JATO unit to the roof, drive off a cliff, and when you arc over, flip the switch. You should impact the ground at 1200 miles per hour.

    You’ll be dead long before then as the windshield will implode, but hey! It’s the thought that counts.

    1. “So both sides, I would like to cordially invite you to get in a car and strap a famed JATO unit to the roof, drive off a cliff, and when you arc over, flip the switch.”

      The Mythbusters tried to build a JATO car, and it never worked. Only one of them blew up, though.
      They did once run a rocket-sled with a snowplow on the front through a car. The lesson from that was “don’t park a car you care about in front of a rocket sled”.

  8. I’m surprised at the seriousness with which all the pundits are taking an order that is quite naked in its attempt to perpetuate a social agenda through executive force.

    There is nothing intellectual here, folks … it’s just a naked power grab.

    1. “There is nothing intellectual here, folks … it’s just a naked power grab.”

      A power grab? seriously?

      No, SERIOUSLY?

  9. Meet Pat, the non-cisnormative doll. Pull hir string and xhe says, “biology is hard!”

    1. Meet Cal, the non-cisnormative twit. Pull its string and it says “I don’t know which gender I am unless I have toys to tell me”.

  10. These laws are so stupid. Why shouldn’t all the dolls be kept together? Completely leaving aside “boy” and “girl” toys, don’t you want similar toys grouped together?

    1. That’s the issue. In every toy store I know, there’s dolls and ponies on one side, Nerf guns and Hot Wheels on the other, and in the middle they have board games and Legos. No explicit labeling about who gets what, but you know where to find what you’re looking for.

      I’m still struggling to comprehend who would want this law.

      1. ” In every toy store I know, there’s dolls and ponies on one side, Nerf guns and Hot Wheels on the other, and in the middle they have board games and Legos.”

        They make Nerf guns that are marketed to girls now. You know what the difference between them and the ones they market to the boys? The ones with marketed to the girls have pictures of girls playing with the toys on them, and the ones marketed to the boys have packaging with pictures of boys playing with the toys. Oh, yeah and the color of the plastic is different. There’s more of a difference between the Legos marketed to girls and the Legos marketed to boys (but yeah, the color of the plastic is different).

        1. And do you know where the Nerf guns and Legos marketed for girls are? Right next to the Nerf guns and Legos marketed for boys. There is no separate section for boys and girls

  11. The quoted section of the law may be void for vagueness, unless there will be clarifying regulations like “dolls wearing dresses must be mixed with at least 40% dolls wearing pants; dolls with long hair must be mixed with at least 40% dolls with short hair; …”

    The article I read on the law said a supporter was worried about girls not getting fire trucks to play with.

  12. Time for California to simply mandate the gender-neutral Mao suit for everyone as the official uniform of the state.
    Nothing is going to stop them with at just kids toys.

  13. Whenever a ridiculous thing happens driven by the left, it’s always amusing to see the right be so eager they overplay their hand.

    California is Moist now. California is gyno-fascistic. No, sexual harassment is not free speech.

    1. Maoist. Write your own jokes.

      1. I liked “Moist” better …

      2. Moist, Maoist, whatever. Try living in California under this demented left wing government. And with all representation based upon population it won’t get any better in the foreseeable future. Of course, if the tables were turned and the right had a stranglehold on policy for the foreseeable future I’m sure it would be just as bad in the opposite direction.

        1. I don’t love the one-party government thing they have going on either, and think lots of their laws are silly as hell. But lots of people seem quite eager to live in California still.

      3. I was in California a month or so and it was pretty dry then.

        But seriously, Gyno-Fascistic Guy above has a point, even if he is super overwrought about it. I like visiting California, but despite all the tax money they collect their roads….we’ll, they suck. Governments have begun to focus on socially stuff like this rather than do their primary function.

        Here in Houston we’re insolvent – the promised pension benefits to police and fire people swamp any realistic future tax income.

        Biden wants to raise taxes to spend $3.5 billion on woke crap while SS and Medicare are headed toward insolvency of their own. Raise taxes to fix those before you bite off more stuff to chew on.

        But they don’t. Actually doing real things is too hard for these nitwits. So we worry about the genitalia on dolls instead.

        1. I’m not saying this was a good move, nor that California is currently a bastion of wisdom. But 1) giving policies a gender means you got issues, and 2) it’s not fascism, FFS.

          And California does tons of more substantive policies as well. They spend tons of money on programs. And the recent zoning reform springs to mind – I’ll be keeping my eye on that for good or ill.

          1. “it’s not fascism”

            I once gave a presentation about counterfeit goods. I said counterfeiters were like pirahnas. If you fall into a river with a single pirahna, you may get a nasty bite, but you will survive. If there is a school of pirahnas, you may get eaten alive. That is what counterfeiters do to a brand.

            The notion that the government can intrude upon every aspect of life and regulate it to death is like a school of pirahnas. One iteration is just nasty, but when you get a hundred of these, then liberty itself is in jeopardy. Not too long ago, a law like this would have been lauged at. Now it is the law of the most populous state.

            1. Your melodrama about the oppression of modernity is ridiculous on it’s face. Look at the 1A now versus in the 1960s, for instance. Not long ago you could be put in jail for wearing a ‘fuck the draft’ jacket by a courthouse.

              There’s a reason why the right has to keep invoking Venezuela and the like as what every new policy will bring about, because no one is buying the libertarian claptrap about modern America being unfree.

              1. “Not long ago you could be put in jail for wearing a ‘fuck the draft’ jacket by a courthouse.”

                That’s right. Today you could be beaten, and end up with a concussion, for wearing a “support the police” jacket by the same courthouse. We’re moving from sanctioning outlier opinion, to sanctioning majority opinion, and that’s a pretty big difference.

                1. “Today you could be beaten, and end up with a concussion, for wearing a “support the police” jacket by the same courthouse. ”

                  And still no interest in policing reform, even when they’re THAT out of control.

        2. And I’m not too worried about entitlements – lots of fixes when the pressure actually builds – change the age of eligibility, change the contribution caps, index the payout.

          EITC isn’t woke crap. That money will help families. And mostly nonvoting families, so don’t pretend it’s bribery. Universal pre-K is good. I’m not sure about free community college, but I respect the big swing.
          Plenty of stuff that’s not woke crap.
          https://www.investopedia.com/here-s-what-s-in-the-usd1-trillion-infrastructure-bill-passed-by-the-senate-5196817

          1. Yep. Words like racism, nazi, socialist, communist, fascist have been so overused in the last 5-10 years that they no longer have real meanings.

            Stuff like changing the eligibility age is breaking commitments to people, some of whom made lifelong plans based on the promise. Shouldn’t do that.

            Of course it’s buying votes. In any package that big there sure better something worth doing. But a lot of it is progressive bullshit. And they’re lying like rugs as to who will get their taxes increased and the degree to which it’ll add to the deficit.

            1. I don’t think of paying into SS as signing a contract with the government with a date certain. It’s not been anything like insurance for a very long time.

              And you can’t call the program insolvent and then yell about keeping commitments – you’re setting up a Catch-22.

              If you want to buy votes, you don’t target those under the poverty line – they don’t vote by and large. You target the middle class. Much more bang for your buck there.

              Unless you just mean that good policies is buying votes, because that’s just tautological.

              And the deficit projections come from the CBO I thought, which is nonpartisan. So where’s the lie?

            2. “they’re lying like rugs as to who will get their taxes increased and the degree to which it’ll add to the deficit.”

              You’re made because you thought your team had a monopoly on these things?

        3. “Actually doing real things is too hard for these nitwits. So we worry about the genitalia on dolls instead.”

          So maybe stop worrying about the genitalia on the dolls, eh?

  14. Even after this law goes into effect, it will apparently still be permissible for stores to have one aisle marked “Toy trucks, plastic guns, and rubber hammers” and another aisle marked “dolls, toy kitchens, and tea party supplies.”

    1. So even as to the trivial problem the law is trying to solve, it is utterly ineffectual. That’s a metaphor for modern leftism.

      1. The problem they’re trying to solve isn’t trivial, and you can’s see what the problem actually is. Metaphor for the right?

        1. You describe the problem below. It is less than trivial. Practically non-existent. You obviously have not gone shopping for toys or dealt with children in a long time, if ever.

          Nor does this legislation deal with the “problem” you describe. If a toy store puts up a sign “Scooters” and then puts all the different colored scooters below that sign, it is in compliance with this new law. (And indeed, that has always been the case in toy stores I have been in. And I have five children.) Yet some scooters will still be pink while others are blue or green or black. And the former will probably have cute little frill decorations, and the latter more manly ones, like flames or whatever. And little Johnny He-Man will still not want a pink scooter, sign or no sign.

          So, yeah it’s a metaphor for the left having their heads up the other end. A silly problem, and a solution that does nothing to deal with the supposed problem.

    2. “Even after this law goes into effect, it will apparently still be permissible for stores to have one aisle marked “Toy trucks, plastic guns, and rubber hammers” and another aisle marked “dolls, toy kitchens, and tea party supplies.””

      You misunderstand the problem they’re trying to address. You’ve always been welcome to buy a toy truck for your daughter or a toy kitchen for your son. But if what you want to get is a scooter so your little darling can play outside in the driveway, you could go to the boy’s aisle and buy the scooter in red and blue plastic, or go to the girl’s aisle and buy the exact same scooter in lavender and pink plastic. the toy manufacturer does this so you won’t be tempted to let your little boy play with a hand-me-down toy that used to belong to your daughter, or to the neighbor’s daughter, or a cousin. They want your son to reject the hand-me-down not because the plastic is scuffed and the axle is bent, but because the plastic is the “wrong” color, and your little he-man wouldn’t stand for being caught playing with a girls’ toy. So the one with the wrong colored plastic goes to the landfill and you find yourself in the store, looking for an identical toy except made out of the right color of plastic.

      1. Maybe things are different in California, but where I live the scooters are in their own section, with the red and blue ones right next to the lavender and pink ones. Also we have this thing called “paint” that is quite useful for changing the colors of things and people tend to use it a lot

        1. “Also we have this thing called “paint” that is quite useful for changing the colors of things and people tend to use it a lot”

          Some have paint, some have bureaucratic laws that run to the hundreds of pages. À chacun ses goûts.

  15. The problem:
    Wasteful manufacturing of identical toys marketed to girls and boys separately. The exact same toy is manufactured, with cosmetic changes (like differently-colored plastic) Then the toy is marketed separately to boys and girls (and to a lesser extent, to parents of boys or girls).

    Department stores, building their layout plans, put all the toys marketed to boys on one aisle, and all the toys marketed to girls on a different aisle, so that parents (or other adults buying toys for children) can choose from all the toys for their little girl are arrayed in front of them, and all the toys not targeted for their little girl are hidden away in a different area. A parent who wants to buy toys for their sons and daughters to play with together is presented with an artificial choice, they can get the toy in the “girl” version or the “boy” version (and the only differences will be the children pictured on the packaging, and perhaps different shades of plastic used to manufacture the toy.)
    A side problem is that some toys are NOT marketed separately to boys and girls, and may risk being placed in only one of the two store aisles. A concern for parents of girls is the dearth of STEM toys marketed to girls. They are in the boys’ section, and only the boys’ section, and the packaging is all of boys building interesting things. Learning science, technology, engineering, and math while playing with toys that stimulate these interests.

    The challenge is in reaching the consumer. As long as the stores think that people who buy childrens’ toys want them strongly differentiated between “girl toys” and “boy toys”, the stores will want to differentiate them. They’ll be happy to sell you a box of Lincoln Logs for your little girl. The only reason they aren’t putting the boxes of Lincoln Logs in the little girls’ toy section is that they think you don’t want to buy Lincoln Logs for your little girl.

    Telling the store manager isn’t enough. The big chains all get directions for store layout from corporate management, and local store managers often have little to no authority to vary from the plan.

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