There are a number of new laws that will kick in in 2024, but one of the most interesting fights are likely to over the new California law requiring stores with more than 500 employees to carry “gender-neutral” toys over face state fines. The law, signed by Gov. Gavin Newsom in 2021, is likely to trigger free speech challenges.
The law covers childcare items, which is defined as “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.”
The requirement of a gender-neutral section could be opposed by businesses on religious or other grounds. Notably, this applies to relatively large businesses. In the past, companies like Target have been boycotted for selling “tuck-friendly” items opposed by some consumers. While there is likely to be a backlash, these companies can argue that they are merely following the law rather than pursuing woke corporate policies.
The law could return courts to defining the free speech rights of corporations and the question of compelled speech. It is an interesting variation on the case of the recent 303 Creative ruling of the Supreme Court, which is discussed in my recent law review publication as well as my forthcoming book.
In that case, the Court ruled in favor of a website designer who refused to work on same-sex marriage projects. That case, however, involved products made by the designer with “expressive content.” This is requiring the selling of products made by others.
In 2010, in Citizens United v. Federal Election Commission, the Court held in favor of a company in striking down political campaign limits as a denial of corporate free speech rights.
In 2014, in Burwell v. Hobby Lobby, the Court ruled in favor of a privately-held, for-profit corporation that refused to cover contraceptive services under the Religious Freedom Restoration Act of 1993.
This case presents a different but arguably analogous issue of corporate free speech. A major element for challengers is to find an ideal plaintiff with long-standing religious objections to such gender neutral products to make the strongest case for government-compelled speech.
The question is whether a state can compel a company to sell items that it or its customers consider to be morally offensive. If so, what is the limit on such state power? While these are not expressive products created by the owners, it is still compelling the store to associate with such products and their inherent message or values. For example, if Jack Phillips of Masterpiece Cakeshop is no longer required to make same-sex cakes, could he be required to sell pre-made same-sex cakes created by others?
As many on this blog are aware, my natural default remains with free speech. However, people of good faith can disagree on such questions. The court may soon be involved in answering these questions in what is likely going to be a novel and important challenge out of California.
It sounds like the lawmakers in Sacramento are bored and needed to do something.
Since one’s gender-identity is potentially found along a vast spectrum of options, a product marketed as gender-neutral will certainly find a way to offend someone.
So stores should do nothing more than remove references to boys and girls, and post signage on all toys as gender-neutral.
Interesting discussion. So it is bad for the state to force the sale, or non sale of items. It is bad for the state to force a store to be open on Sunday. But it is ok for the state to force a woman to take a pregnancy to term even if the pregnancy may kill the mother, cause the mother to be unable to give birth ever again, or even if the fetus is born with a problem that will cause certain painful death within 48 hours of birth.
Can’t have it both ways. Should the state force actions or not?
Yea Bob, (aside from your weak ass gaslighting attempt) if there is a difference between real harm and perceived harm, then yes. Of course in your world, there’s not.
Nature “forces” a woman to take a pregnancy to term. It is the free market which has given her options.
Nor does the state “force” a woman to carry a pregnancy to term, it merely punishes – usually doctors who kill that pregnancy.
Presumably you are OK with the state punishing murderers.
Regardless, I, as well as most or all people who are pro-life (I am not actually) will be perfectly happy to agree that all humans have the absolute right to control of their own bodies – even if that means removing a fetus from the womans womb just before birth,
Are you prepared to accept that the right to control your own body – which does include the right to remove a fetus from it at any time,
Does not include the right to kill that fetus ?
With respect to your claims.
Pregnancy is dangerous – so is abortion. The data – From Gutmacher (Planned Parenthood), is that the risks of pregnancy and abortion are about the same. There was no change in the death rate of pregnant women from before to after Roe.
Abortion kills fetus’s we can fight over exactly when a fetus can feel pain – but it is near certain atleast as early as 15 weeks.
Death is pretty painful much of the time, and we will all die eventually.
This NT harlot pushing this is corruption is hidden in plain site within the OT harlot in the language our sovereign God chose to be most widely spoken in these last days!:
JER(USA)LEM
https://sumofthyword.com/2021/01/07/mystery-babylon-the-great-and-her-beast/
States fining businesses for NOT offering gender-neutral toys ??? Must be Gavin Newsom’s new economic strategy to balance California’s budget. Just imagine if he were President !!
I’m tired of gender dysphoria people hogging the headlines. Celebrate schizophrenia!
Come on Professor, you can include a link to your book but not the actual law under discussion. i.e the primary source?
Lazy much?
Are you unable to supliment Turley’s remakrs with a link ?
As long as we are debating how many angels CAN dance on the head of this gender pin, Lets not forget the NYC is REQUIRING Chick-Fill-A to open on Sunday. More govt compelling people to act against their faith.
The trolls will show up here when they wake from their hangover, and try to tell us Trump is the despotic authoritarian. For promising to enforce Immigration law.
NYC makes a contract with a company that is CLOSED ON SUNDAYS, ALWAYS has been. Then sues to force them to open on the Sabbath. LOL they set this up to force CFA to go against their faith.
“force them to open on the Sabbath” Forcing them to open on Saturday? I thought the issue was open on Sunday, not the Sabbath. Get your facts straight please.
Bob telling someone to get their facts straight, right after gaslighting about abortion exceptions.
Bwahahahahahaa
Bob is working on his pedantry badge.
Sabbath is just a day of worship and rest as is described is Jewish and Christian scripture (according to Old Oxford Dictionary)
Uhh no. The law applies only to future contracts. No one is getting sued.
Iowan2,
I was on the NY Through Way a few weeks ago. Stopped at two rest stops.
What the law makers do not mention, as if Chick-Fil-A was the ONLY food option at the rest stop, there was also a Starbucks, a grab and go mart that had everything from water, juice, tea, energy drinks, coffee, snacks of different kinds, fruit.
The one rest stop also had some pizza joint that was not opened for breakfast.
Was it a bummer Chick-Fil-A was not open on Sunday? Sure. Was I denied a wide variety of food to choose from? Not really.
I heard that Hermaphrodite Barbie was a big seller this Christmas.
So what is this doll suppose to have for parts? None or both? Just how far from reality is this insanity going to go before the adults in the room step in and stop this nuttiness? Pandering to a mentally delusional micro-minority and their brainwashed advocates is costing society in so many ways. Where are the sane people at this point?
There are no adults left in the room. Therein lies the rub.
Since when did Barbie and Ken have genitalia?
One of our nieces got a toy for Christmas that included a toy child with one arm, and other toy children with gender interchangeable names. This wasn’t apparent on the innocuous box the toy came in. It won’t stop until sales tank and the people making the decisions are fired, a la Twitter; a handful of people not shopping at Target isn’t going to do the trick. It is so ingrained now there is nothing but uphill ahead, these people are insane, they are ignorant in the extreme about what actually constitutes diversity, they believe wholeheartedly in stereotypes, they are vindictive, and they are privileged enough to never have to relent. The Constitution is but a trifle in their empty, narcissistic little heads.
From a distance, many very still think California is ‘hip’, but we’d better bear it all in mind if Newsome ends up on the ticket, it will be an endless 24/7 version of the lockdown, the Soviets are laughing in their graves.
James,
“It won’t stop until sales tank and the people making the decisions are fired,”
That is why woke leftists hate capitalism and free markets. Points out grossly how much normal people do not want wokeism. So, woke leftists have to force everyone in to it by dumb laws.
@Upstate
Excellent observation. I think so too! Part of the reason I’m frequently harping on about aristocracy, they do not want to have to compete. They don’t think they should have to.
More confusion for me from the gender hallucination.
Neutral to what? There is an aisle for Barbie Dolls. There is an aisle for Tonka Toys. Whats the problem? If 7 year old Johnny is wearing a dress, is he limited to where he wanders in the store?
That’s what I was wondering. Every time I think we might have hit the bottom of the abyss, I discover we have more to travel into this insanity.
Can someone help me understand what is a gender neutral toy, based on the definition above? Is it a pacifier or a baby bottle in a neutral- non pink or blue- color? Honestly- this makes no sense to me.
A doll with clothes for both sexes?
Potato head pieces of both sexes to attach like gender affirming Dr’s?
The definition will change like the definition of everything they change by the minute and hour aligning with their mentally ill emotions. If nothing has a definition, nothing is real. Take away the individuals right to define, and you take away the individual. Allow govt to define, and they have total control.
@David
That’s always my thought. These fools imagine, in their narcissism, that their own embracing of stereotypes is just human nature; we are all being castigated for their personal failings and mushroom headed thinking. Girls are already allowed to play with toy cars if they want to, and without changing a thing about themselves.
It is madness, and worse, it is madness peppered with abject stupidity. The self-imposed, ironically *binary* mental slavery of the woke is something to behold. These people are not well, and they are not smart. Nothing can be created from this mentality, only destroyed. They are handmaidens of entropy and mediocrity, all of them.
James,
Well said.
We all need to call out wokeism for its stupidity. For those who embrace wokeism, pity them for their stupidity. Then laugh at them!
Of course California did. NOTHING that state does surprises me anymore. I would be more aghast if they implemented something mundane, or dare I say constitutional.
The items enumerated appear not to be “toys.” Many of them are unlikely to be “gendered” to begin with.
Does the law say there must be equal space? If not, token compliance would be easy.
That having been said, this is an idiotic intervention into the marketing strategies of large retailers.
Does the law say there must be equal space?
Equal space of WHAT??? The population 50/50 (if you round)
So what is equal space?
I need some serious remedial help here.
I meant equal space boy, girl and neutral “toys”. If this isn’t required you could have 10% of one shelf for neutral.
“Many of them are unlikely to be “gendered” to begin with.”
Blue toys are “gendering.” (I assume that’s a new Woke word.) As are pink ones. Henceforth, all toys shall be rainbow colored.
Another reason not to go to CA.
And another reason for people to flee that crazy state.
They are doing just that…and taking their crazy ideology with them.
Mary,
Sad part is there are a bunch of idiots who thought this was a good idea.
There is a reason why the rest of the world dont want wokeism infecting their country and they are all laughing at the US.
Democrats hate free choice and free thinking.
“. . . California law requiring stores with more than 500 employees to carry “gender-neutral” toys . . .”
People and wealth flee fascist states. Thus the mass exodus from California.
But in order to “offer”, or in other words, sell an item, the retailers must first purchase them. Retailers like Target or Wal Mart are not manufacturers. To what lengths must a retailer go to procure these items? Can California compel manufacturers to create them? And if the items do not sell, will the state reimburse them for the compelled loss? And what will compliance with the law look like? What if the items sell like hotcakes, and there is a time lapse to reacquire inventory? Will they be liable during that time? And what if they only offer the items for purchase online?
“And if the items do not sell . . .”
Social engineers don’t care. As the Voice of the People, they know what’s best for you. Bankruptcy be damned. Thus they compel products that people don’t want, e.g., EV’s. And criminalize products that people do want, e.g., gas stoves.
Can’t wait to see the first lawsuits for the reasons you identified above. But retailers like Target are themselves so dang woke, so while this is more California lunacy, I have little sympathy for the retailers.
Next it will be that bookstores (if there are any left) carry a certain number of Satan-worshipping books. Or a certain number of “gender neutrality” books. Where does this go and where does it end? I know it’s going to court. Let’s hope that’s where it ends.
Mary,
The solution is two societies, running in parallel, that never meet.
You want to go to a restaurant with drag queens as your waitstaff that announce their pronouns before they even take your drink order? Have at it.
If you dont, go to the restaurant across the street that the waitstaff all wear the same uniform, use normal pronouns and dont care about who or what you identify as.
under Fascism your FREEDOMS are over!
Time to end federal aid to states, cities and colleges
Let Democrats fund their failures!
Professor, who does your proofreading? There are numerous mistakes in this article.
people who incapable of thought…always look for typos
Petty tyrants. Mindless drones, etc.