LGBT rights in California

LGBT rights in California

Same-sex sexual activity legal? Legal since 1976
Gender identity/expression Transsexual persons allowed to change legal gender
Discrimination protections Sexual orientation and gender identity protections (see below)
Family rights
Recognition of
relationships		 Same-sex marriages and Domestic partnerships performable and recognized in the state, civil unions and marriages performed in other jurisdictions recognized.
Adoption Same-sex couples may adopt jointly and may have step adoptions

California is seen as one of the most liberal states in the U.S. in regard to lesbian, gay, bisexual, transgender (LGBT) rights, which have received nationwide recognition since the 1960s. Same-sex sexual activity has been legal in the state since 1976. Discrimination protections regarding sexual orientation and gender identity or expression have been adopted statewide since 2003. Public schools are also required to teach about the history of the LGBT community and transgender students are allowed to choose the appropriate restroom or sports team in regard of their gender identity. Mental health providers are prohibited from participating in reparative therapy for LGBT minors.

California also became the first state in the U.S. to legalize domestic partnerships between same-sex couples in 1999. Same-sex marriage was legalized in 2008 for five months until voters approved a ban in November of the same year. After the Supreme Court refused to recognize the legal standing of same-sex marriage opponents on June 26, 2013, the ban was no longer enforceable, allowing same-sex marriages to recommence starting on June 28. Same-sex adoption has also been legal statewide since 2003, allowing step adoption and joint adoption between same-sex couples.

In 2014 California became the first state in the U.S. to officially ban the use of gay panic and trans panic defenses in murder trials.[1] In 2015 California became the first state in America to agree to pay for transgender prison inmates to receive sex reassignment surgery.[2] Most support for LGBT rights can be seen in the largest cities, such as Los Angeles, San Diego, and San Francisco, as well as many cities on the Pacific coast. Recent polls have indicated that a majority of Californians support same-sex marriage.

Law regarding same-sex sexual activity

In 1974, California voters opted to amend the State Constitution's Declaration of Rights to include "inalienable rights" such as "life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." A consenting adults law for residents over 18 years old, which restricting existing laws on sodomy or oral copulation for same-sex or opposite-sex couples to genuinely criminal instances alone, was passed in May 1975. See: Consenting Adult Sex Bill[3]

Recognition of same-sex relationships

From the enactment of legislation in 1971 to replace gendered pronouns with gender-neutral pronouns, until 1977, California Civil Code § 4100 defined marriage as "a personal relation arising out of a civil contract, to which the consent of the parties capable of making that contract is necessary."

This definition was uniformly interpreted as including only opposite-sex partners, but, because of worries that the language was unclear, Assembly Bill No. 607, authored by Assemblyman Bruce Nestande, was proposed and later passed to "prohibit persons of the same sex from entering lawful marriage." The act amended the Civil Code to define marriage as "a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary."

Opponents of the bill included Assemblyman Willie Brown (who authored the repeal of California's sodomy law in 1975) and Senator Milton Marks. The bill passed 23–5 in the state Senate and 68–2 in the Assembly. It was signed on August 17, 1977 by Governor Edmund Brown (who also signed its repeal via SB 1306).[4][5][6] Since 1994, this language is found in § 300 of the Family Code.

In 1985, the City of Berkeley became the first governing entity in the state to recognize same-sex couples legally when it enacted its domestic partnership policy for city and school district employees. The term "domestic partner" was coined by city employee and gay rights activist Tom Brougham, and all other domestic partnership policies enacted in the state in the years since are modeled after Berkeley's policy.

California has provided benefits to same-sex partners of state employees since 1999.[7]

Through the Domestic Partnership Act of 1999, California became the first state in the United States to recognize same-sex relationships in any legal capacity. As of the 2003 California Domestic Partner Rights and Responsibilities Act (effective January 1, 2005), domestic partnerships are considered equivalent to legal definitions of recognized and performed same-sex unions in other states of the United States and other nation-states.[8][9]

Proposition 22, an initiative passed by voters in 2000, forbade the state from recognizing same-sex marriages. This initiative was struck down by the California Supreme Court in In re Marriage Cases, but a few months later, Proposition 8 reinstated California's ban on marriages for same-sex couples. During the time between the California Supreme Court decision and passage of Proposition 8, the state allowed for tens of thousands of marriage licenses to be issued to same-sex couples. Strauss v. Horton affirmed that those marriages were still valid after passage of Proposition 8.

In 2010, a federal district court in Perry v. Schwarzenegger determined that Proposition 8 was unconstitutional due to violations of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, but the United States Court of Appeals for the Ninth Circuit ordered a stay of the judgement pending appeal.

In February 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the district court's holding in Perry v. Schwarzenegger that Proposition 8 was unconstitutional, although on narrower grounds. Proposition 8 proponents sought rehearing en banc (meaning review of the decision by a larger panel of Ninth Circuit judges) but this was denied in June 2012. The proponents then petitioned the US Supreme Court to review the Ninth Circuit's decision, and it agreed to do so on December 7, 2012. The Supreme Court issued its ruling on June 26, 2013, effectively upholding the lower courts' determination that Proposition 8 was unconstitutional but doing so on procedural grounds without directly addressing the constitutionality of the measure. Two days later, the lifting of a stay by the U.S. Court of Appeals for the Ninth Circuit allowed same-sex couples to recommence marrying in California.

Efforts were underway for a 2012 referendum to repeal Proposition 8 and amend the State Constitution to allow same-sex couples to marry. However, in February 2012, Love Honor Cherish, the organization gathering signatures for that potential ballot initiative, canceled the effort in light of the fact that the Perry lawsuit was going well for the pro-equality side and an expensive ballot campaign appeared unlikely to be necessary.

SB 1306, introduced in February 2014 by Senator Leno and signed by Governor Jerry Brown in July 2014, updated the Family Code to reflect marriage equality in California. It removed unenforceable and discriminatory language against same-sex couples, such as Proposition 22 (2000) and AB 607 (1977), and also modernized the entire code by replacing references to "husband" and "wife" with "spouse(s)".

The Marriage Recognition and Family Protection Act

On October 12, 2009, following the passage of Proposition 8, Governor Arnold Schwarzenegger signed into law The Marriage Recognition and Family Protection Act (SB 54), legislation proposed by State Senator Mark Leno.[10][11] The bill established that some of the same-sex marriages performed outside the state are also recognized by the state of California as "marriage", depending on the date of the union.[12]

After the California Supreme Court challenge following the passage of Proposition 8, the California Supreme Court Justices affirmed that all same-sex marriages performed in California before the passage of Proposition 8 continued to be valid and recognized as "marriage". The Marriage Recognition and Family Protection Act also established that a same-sex marriage performed outside the state is recognized as "marriage" if it occurred before Proposition 8 took effect. This category also includes same-sex marriages performed before same-sex marriage became legal in California.[13] SB 54 also mandates the full legal recognition of same-sex marriages lawfully performed outside of California after the passage of Proposition 8, with the sole exception that the relationship cannot be designated with the word "marriage".[14] The law provides no label to be used in place of "marriage" to describe these relationships; they are not "domestic partnerships".[13] The resumption of same-sex marriage in California on June 28, 2013 effectively supersedes this law with respect to out-of-state same-sex marriages.

SB 1306 (2014)

Introduced by Senator Mark Leno on February 21, 2014, SB 1306 repealed Sections 300 (AB 607, 1977), 308 (The Marriage Recognition and Family Protection Act, author by Sen. Leno), 308.5 (Prop 22, California Defense of Marriage Act) of the Family Code, and amended Section 300 to be gender neutral among other sections as well.[15] The legislation removed the statutory reference to marriage as a union "between a man and a woman" from the states' Family Code and updated the law with gender-neutral terms to apply to same-sex marriages as well as heterosexual ones.[16]

During its passage, some concern was expressed that, by repealing the California Defense of Marriage Act, SB 1306 breached the separation of powers as the legislature would be repealing an initiative passed by the voters. However, the consensus of the Assembly Judiciary Committee was that the voters are no more able to pass an unconstitutional, and subsequently enjoined, statute anymore than the legislature can. In light of In Re Marriage Cases and Hollingsworth v. Perry, which collectively forbade the enforcement of any law which would prohibit same-gender couples from marrying, it was determined by the Assembly Judiciary Committee that the legislature has the capacity to repeal enjoined statutes.

SB 1306 was approved by the Senate Judiciary Committee 5-2 on April 8, 2014. On May 1, 2014, the California State Senate passed the bill on a 25-10 vote.[17] On June 30, SB 1306 passed the Assembly, in a 51-11 vote.[18] It was signed by the governor on July 7, 2014 and took effect on January 1, 2015.[16][19] The definition of marriage in California is now the following:[20]

Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary.

SB 1005 (2016)

In April 2016, the state Senate voted 34-2 to approve SB 1005, a bill by Senator Hannah-Beth Jackson that updates California law similarly to SB 1306.[21][22] The California lower house approved the bill by a vote of 63-1 with amendments, went back to the state Senate approved by a vote of 34-0. The bill became both engrossed and enrolled, meaning it passed both houses in the same form. The bill was signed into law by Governor Jerry Brown, and will go into effect on January 1, 2017.[22]

Adoption, surrogacy and family planning

Same-sex adoption has been legal since 2003 and artificial insemination for lesbian couples has been legal since 1976.

Altruistic or commercial surrogacy is legal within California since 1990. The Californian Democrat Governor Jerry Brown signed several surrogacy bills into law.[23][24][25][26]

Discrimination protection

Extensive protections for LGBT people exist under California law, particularly for housing, credit, labor and/or employment. In addition, sections of In re Marriage Cases not overturned by Proposition 8 include the establishment of sexual orientation as a "protected class" under California law, requiring heightened scrutiny in discrimination disputes.

In 1979, the California Supreme Court held in Gay Law Students Assn. V. Pacific Tel. & Tel. that public institutions cannot discriminate against homosexuals under Article I, section 7 subdivision (a) of the California Constitution which bars a public utility from engaging in arbitrary employment discrimination.[27]

In 1992, after the AB 101-Veto Riots, Gov. Pete Wilson Signed the FEHA which reformed existing California anti-discrimination statutes to cover Sexual Orientation in employment. The penalties of that bill differed from AB 101 in that the provided penalties were civil rather than criminal in nature.[28] Effective in 2000, AB 1001 further reformed the FEHA and broadened employment, housing, and credit protections for gay men, lesbians, and bisexuals. Gender identity was not protected until 2004.[29][30]

Federal Income Tax

The Internal Revenue Service ruled in May 2010 that its rules governing communal property income for married couples extend to couples who file taxes in a community property state that recognizes domestic partnerships or same-sex marriages. Couples with registered domestic partnerships or in same-sex marriages in California, a community property state, must first combine their annual income and then each must claim half that amount as his or her income for federal tax purposes.[31]

Hate crime laws

California SB 1234 clarifies protections of sexual orientation and gender identity or expression alongside other classes against hate crimes.

Gay panic and trans panic defenses

In 2014 California became the first state in the U.S. to officially ban the use of gay panic and trans panic defenses in murder trials.[1]

Same-sex conjugal visits

In June 2007, the California Department of Corrections announced it would allow same-sex conjugal visits becoming the first state to do so. The policy was enacted to comply with a 2005 state law requiring state agencies to give the same rights to domestic partners that heterosexual couples receive. The new rules allow for visits only by registered domestic partners or same sex married couples who are not themselves incarcerated. Further, the domestic partnership or same-sex marriage must have been established before the prisoner was incarcerated.[32]

Gender reassignment

Sex and gender changes are legal in the state. Sex reassignment surgery is not a requirement to change your gender on a new birth certificate. In 2014 a new law was passed which requires any official responsible for completing a transgender person's death certificate to ensure it represents the deceased person's gender expression, as documented in other government-issued documents or evidenced by gender confirmation medical procedures.[33] In 2015 California became the first state in America to agree to pay for transgender prison inmates to receive sex reassignment surgery.[2]

Health of LGBT people

In 2014 a new law was passed, according to which doctors, nurses, and other health care providers are expected to meet cultural competency standards that include "understanding and applying cultural and ethnic data to the process of clinical care, including, as appropriate, information pertinent to the appropriate treatment of, and provision of care to, the lesbian, gay, bisexual, transgender, and intersex communities." [34]

Educational inclusion

FAIR Education Act

The FAIR Education Act is a California law signed into effect by July 14, 2011. The law compels the inclusion of the political, economic, and social contributions of persons with disabilities and lesbian, gay, bisexual, and transgender people into educational textbooks and the social studies curricula in California public schools by amending the California Education Code. It also amends the existing law by adding sexual orientation and religion along with race, ethnicity, nationality, gender, and disability that schools are prohibited from sponsoring negative activities about or teaching students about in an adverse way.

The School Success and Opportunity Act

The School Success and Opportunity Act, also known as Assembly Bill 1266 or AB 1266, is a bill that was introduced by Asseblyman Tom Ammiano and signed into law by Gov. Jerry Brown. The law extends gender identity and expression discrimination protection to transgender and gender nonconforming K-12 students. The bill specifically mentions that classes and activities are to be conducted without regard to one's birth sex as well as allowing transgender students to use bathrooms, locker rooms, and participate in sports that are congruent to their gender identity without regard to their physical sex at birth. The law took effect in January 2014.[35]

The law did not come without controversy and criticism though. Anti-LGBT groups such as the National Organization for Marriage, SaveCalifornia.com, and The Pacific Justice Institute have all supported a petition to have a ballot initiative to overturn the law. The petition was circulated by the Privacy for All Students Coalition which has worked with the aforementioned groups. By raw count 620,000 signatures were signed while only 505,000 are required to put a referendum on the ballot. If all signatures are deemed valid the initiative will go up on the ballot for the 2014 California Elections.[36] However, the law is still in effect.

Conversion therapy

In August 2012, the California State Assembly approved SB 1172[37] prohibiting mental health providers from engaging in sexual orientation change efforts (such as conversion therapy) with LGBT minors, signed into law by Governor Jerry Brown on September 29, 2012.[38] The law would have gone into effect January 1, 2013, but was being challenged in Pickup v. Brown and Welch v. Brown.

On August 29, 2013, the US Ninth Circuit Court of Appeals suspended the injunction on SB 1172 and rejected the plaintiffs' claims against allowing for the ban on SOCE to go into effect.

On June 26, 2014, the Supreme Court held a conference on whether or not to grant certiorari to Pickup v. Brown.[39] Certiorari was denied by the Supreme Court on June 30, 2014.[40]

California was the first state with such a law.

On May 27, 2016 California Governor Jerry Brown signed Senate Bill 1408 into law - effective immediately, that recently unanimously passed the California State Legislature that protects organ donation and transplantation between HIV-positive people in the state of California. Surgeons who transplant organs from HIV-positive donors into HIV-positive patients are also protected from liability and from being penalized by the California Medical Board. This law is also in-line with President Barack Obama’s federal HOPE Act, which reversed the federal ban on this procedure back in 2013.[41][42][43]

Gender-neutral bathrooms

California became the first state within the US to legally require all single occupancy bathrooms to be gender-neutral from March 1, 2017.[44][45][46]

Ballot initiatives

Ballot initiatives on gay rights statewide in California
Year Proposition % of California population
November 7, 1978 California Proposition 6
Voter turnout 70.41 70.41
 
No 58.4 58.4
 
Yes 41.6 41.6
 
March 7, 2000 California Proposition 22
Voter turnout 53.87 53.87
 
No 38.6 38.6
 
Yes 61.4 61.4
 
November 4, 2008 California Proposition 8
Voter turnout 79.42 79.42
 
No 47.76 47.76
 
Yes 52.24 52.24
 
Ballot initiatives on domestic partnerships in San Francisco
Year Proposition % of San Francisco population
November 7, 1989 Proposition S (establish domestic partnerships)[47]
Yes 49.5 49.5
 
No 50.4 50.4
 
November 6, 1990 Proposition K (establish domestic partnerships)[48]
Yes 54 54
 
No 45.9 45.9
 
November 5, 1991 Proposition K (repeal domestic partnerships)[49]
Yes 40.8 40.8
 
No 59.1 59.1
 
March 2, 2004 Proposition D (expand domestic partnerships)[50]
Yes 65.07 65.07
 
No 34.93 34.93
 

Summary table

Homosexuality legal (since 1976)
Equal age of consent (since 1976)
Anti-discrimination laws for sexual orientation (since 1992)
Anti-discrimination laws for gender identity or expression (since 2003)
Recognition of same-sex couples as domestic partners (since 1999)
Step adoption by same-sex couples (since 2003)
Joint adoption by same-sex couples (since 2003)
Access to IVF for lesbians (since 1976)
Same-sex marriages (Legal for five months in 2008, re-legalized in 2013)
Commercial surrogacy for gay male couples (since 1990)
Sexual orientation conversion therapy banned on minors (since 2013)
Gender-neutral bathrooms legal (from 1 March, 2017)[51][52]
MSMs allowed to donate blood (Federal policy bans gay and bi men from donating blood for 1 year)

See also

References

  1. 1 2 http://www.advocate.com/crime/2014/09/29/california-becomes-first-state-ban-gay-trans-panic-defenses
  2. 1 2 Cavanaugh, Maureen (2015-09-25). "Transgender In Prison: How California's New Guidelines Will Be Implemented". KPBS. Retrieved 2015-10-28.
  3. ↑ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 9, 2011
  4. ↑ "The Bakersfield Californian on". Newspapers.com. 1977-08-19. Retrieved 2014-06-29.
  5. ↑ Carla Marinucci, Chronicle Political Writer (2009-01-09). "Brown's switch on Prop. 8 reflects times". SFGate. Retrieved 2014-06-29.
  6. ↑ "The San Bernardino County Sun on". Newspapers.com. 1977-08-12. Retrieved 2014-06-29.
  7. ↑ "More Companies Offering Same-Sex-Partner Benefits". New York Times. 2000-09-25. Retrieved 2015-06-21.
  8. ↑ "Full text of AB 205, the California Domestic Partner Rights and Responsibilities Act of 2003". California State Assembly. January 28 – September 22, 2003. SEC. 9. Section 299.2 is added to the Family Code, to read: 299.2. A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership as defined in this part, shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.
  9. ↑ "California Family Code Section 299.2". Onecle.
  10. ↑ McGuire, Bobby (October 12, 2009). "Schwarzenegger signs Milk Day, marriage recognition into law". edgeboston.com. Retrieved September 12, 2013.
  11. ↑ Schwarzenegger signs gay rights bills Archived October 14, 2009, at the Wayback Machine.
  12. ↑ "California bill to recognize some same-sex marriages". CNN. October 12, 2009. Retrieved May 17, 2012.
  13. 1 2 "SB 54 and Same-Sex Couples Who Marry Outside of California" (PDF). Retrieved September 12, 2013.
  14. ↑ Leno. "Text of SB 54". info.sen.ca.gov. Retrieved September 12, 2013.
  15. ↑ "SB 1306 - California 2013-2014 Regular Session". Open States. Retrieved April 5, 2014.
  16. 1 2 "New law updates state code to use gender-neutral marriage terms". Los Angeles Times. July 7, 2014.
  17. ↑ "Calif. Senate advances bill to remove 'man and woman' from marriage laws". LGBTQ Nation. May 1, 2014.
  18. ↑ "Legislation updates California marriage laws". The Sacramento Bee. June 30, 2014.
  19. ↑ "California governor signs bill to update state's marriage laws". LGBTQ Nation. July 7, 2014.
  20. ↑ SB-1306 Marriage Today's Law As Amended
  21. ↑ "Jackson Bill To Update Laws To Reflect Marriage Equality Passes Off Senate Floor". Hannah-Beth Jackson. April 14, 2016.
  22. 1 2 SB-1005 Marriage. (2015-2016), California Legislature
  23. ↑
  24. ↑
  25. ↑
  26. ↑
  27. ↑ "Gay Law Students Assn. v. Pacific Tel. & Tel. Co. - 24 Cal.3d 458 - Thu, 05/31/1979 | California Supreme Court Resources". Scocal.stanford.edu. 1979-05-31. Retrieved 2014-06-29.
  28. ↑ Jane Gross (1992-09-26). "California Governor, in Reversal, Signs a Bill on Gay Rights in Jobs - New York Times". California: Nytimes.com. Retrieved 2014-06-29.
  29. ↑ "Sexual Orientation and Gender Discrimination Under California Law | Shegerian & Associates, Inc". Shegerianlaw.com. 2013-12-30. Retrieved 2014-06-29.
  30. ↑ Villaraigosa. "AB 1001 Assembly Bill - ENROLLED". Leginfo.ca.gov. Retrieved 2014-06-29.
  31. ↑ New York Times: Tara Siegel Bernard, "Tax Season Gets Trickier for Some Gay Couples," March 29, 2011, accessed April 5, 2011
  32. ↑ "Calif. gay inmates get conjugal visits - Life". MSNBC. 2007-02-06. Retrieved 2012-11-09.
  33. ↑ http://www.advocate.com/politics/transgender/2014/09/28/new-law-gives-trans-californians-respect-after-death
  34. ↑ http://thinkprogress.org/lgbt/2014/09/29/3573175/california-panic-condoms-health/
  35. ↑ "Bill Text - AB-1266 Pupil rights: sex-segregated school programs and activities". Leginfo.legislature.ca.gov. Retrieved 2013-12-05.
  36. ↑ Sandeen, Autumn (2013-11-11). "Signature Count Released In AB 1266 Referendum Signature Drive". The Transadvocate. Retrieved 2013-12-05.
  37. ↑ "Senate Bill No. 1172". Leginfo.legislature.ca.gov. Retrieved 2013-11-02.
  38. ↑ Wyatt Buchanan (September 29, 2012). "State bans gay-repair therapy for minors". San Francisco Chronicle. Retrieved October 1, 2012.
  39. ↑ Thomaston, Scottie (2014-06-11). "Equality On TrialSupreme Court to decide whether to hear challenge to California's ban on so-called LGBT 'conversion therapy'". Equality On Trial. Retrieved 2014-06-29.
  40. ↑ http://www.supremecourt.gov/orders/courtorders/063014zor_n648.pdf
  41. ↑
  42. ↑
  43. ↑
  44. ↑
  45. ↑
  46. ↑
  47. ↑ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1989-11-07. Retrieved 2012-11-09.
  48. ↑ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1990-11-06. Retrieved 2012-11-09.
  49. ↑ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1991-11-05. Retrieved 2012-11-09.
  50. ↑ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 2004-02-03. Retrieved 2012-11-09.
  51. ↑
  52. ↑
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