Taking Offense v. State of California

Summary

The California Supreme Court held that the 2018 version of Code of Civil Procedure section 526a does not provide taxpayer standing to sue wholly state officers or entities, but concluded that the circumstances permitted the court to reach the merits. The court upheld Health and Safety Code section 1439.51, subdivision (a)(5), which regulates willful and repeated failure by long-term care facility staff to use a resident’s preferred name or pronouns when motivated by a protected characteristic, rejecting the First Amendment challenge. The document also includes a November 25, 2025 order modifying the November 6, 2025 opinion by deleting the word “wholly,” without affecting the judgment.

Holdings

1. Code of Civil Procedure section 526a, as amended in 2018, does not afford taxpayer standing to sue wholly state officers or entities to restrain or prevent asserted illegal expenditures of public funds.
2. Under the unusual circumstances of this case, the Supreme Court could exercise its discretion to address the Court of Appeal's merits analysis and judgment despite the plaintiff's lack of statutory taxpayer standing.
3. Health and Safety Code section 1439.51, subdivision (a)(5), is a regulation of discriminatory conduct that only incidentally affects speech; it is not subject to First Amendment scrutiny as an abridgment of freedom of speech.
4. The pronouns provision is properly understood as reaching willful and repeated misgendering in the long-term-care setting that is sufficiently severe or pervasive to create an objectively hostile or abusive environment and is subjectively perceived by the resident as abusive.
5. Even assuming the pronouns provision were subject to intermediate scrutiny, it satisfies that standard, and the possibility of pre-existing criminal penalties for particularly egregious violations does not make the provision facially unconstitutional.

Questions Presented

1. Whether Code of Civil Procedure section 526a, as amended in 2018, authorizes taxpayer standing to sue wholly state officers or entities.
2. Whether the court could exercise discretion to decide the merits despite the plaintiff's lack of statutory taxpayer standing.
3. Whether Health and Safety Code section 1439.51, subdivision (a)(5), facially violates the First Amendment by regulating protected speech or compelled expression.
4. Whether the possibility of criminal penalties for violations renders the pronouns provision facially unconstitutional.

Disposition

reversed