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National Center for Lesbian Rights

Cases & Advocacy

Taking Offense v. State of California Amicus

Status: Open

Jurisdiction + Case Number: California Supreme Court - Case No. S270535

On September 14, 2021, Equality California, NCLR, and Lambda Legal filed an amicus letter on behalf of a coalition of state, local, and national nonprofit groups urging the California Supreme Court to review Taking Offense v. State of California, an appellate decision invalidating a non-discrimination statute requiring equal treatment of LGBTQ residents of long-term care facilities.

Taking Offense involves a challenge to a provision of the Lesbian, Gay, Bisexual, and Transgender Long-Term Care Facility Residents’ Bill of Rights prohibiting long-term care facilities and staff from “[w]illfully and repeatedly” misusing a resident’s name and pronouns because of the resident’s sexual orientation, gender identity, or gender expression. The Court of Appeal concluded that the provision violates the First Amendment. The California Attorney General filed a petition for review in the California Supreme Court.

The amicus letter explains that the Court of Appeal erred in treating the statute—which prohibits singling out LGBTQ people for disparate treatment—as a regulation of protected speech, rather than conduct. The letter also explains that Court of Appeal failed to appreciate the full scope of the harm caused by the intentional misuse of transgender people’s names and pronouns, which occurs in many settings. This form of discrimination also harms people who are not transgender, including those who are (or are perceived as) lesbian, gay, bisexual, or gender non-conforming.

The letter also refutes the Court of Appeal’s assumption that such conduct is not otherwise “actionable harassment or discrimination.” Independent of the challenged provision, the intentional misuse of a person’s name or pronouns because of their sexual orientation, gender identity, or other protected characteristic violates the Unruh Civil Rights Act and other state and federal non-discrimination laws applicable to long-term care facilities.

Equality California and other amici are represented by NCLR and Lambda Legal. Additional groups joining the letter are: American Civil Liberties Union of Northern California, American Civil Liberties Union of San Diego & Imperial Counties, American Civil Liberties Union of Southern California, Bay Area Lawyers for Individual Freedom, California Women’s Law Center, GLBTQ Legal Advocates & Defenders, Impact Fund, Legal Aid at Work, National Center for Transgender Equality, National LGBTQ+ Bar Association, National LGBTQ Task Force, National Women’s Law Center, Tom Homann LGBTQ+ Law Association, Trans Lifeline, Transgender Law Center, and TransLatin@ Coalition.

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