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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