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