LGBT rights in California

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LGBT rights in California
California (US)
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] 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[edit]

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 repealed existing laws on sodomy or oral copulation for same-sex or opposite-sex couples, was passed in 1975. Laws against consensual sodomy and oral copulation by homosexual, unmarried and married heterosexual couples were repealed in May 1975. See: Consenting Adult Sex Bill[2]

Recognition of same-sex relationships[edit]

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 is also poised to sign its repeal via SB 1306).[3][4][5] 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 directly modeled after Berkeley's policy.

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.[6][7]

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, which was then successively struck down by Proposition 8. However, between the time prior to the 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 retains the legality of the licenses. Perry v. Schwarzenegger decided 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.

Movements were underway for a 2012 referendum to repeal Proposition 8 and amend the State Constitution to legalize same-sex marriages. However since February 2012, the organization in charge of acquiring the signatures, Love Honor Cherish, canceled the effort to do so in light of the fact that trial Perry v. Brown going well for the pro-equality side. Perry v. Brown was pending appeal to an en banc review to the U.S Ninth Circuit Court until June 5, 2012, when the U.S. Ninth Circuit Court refused to review the case with a larger panel of judges. The proponents of the case have 90 days to decide if they want to appeal to the Supreme Court where the case could be eventually resolved within the next year. On December 7, 2012, the US Supreme Court took up the case Perry v. Brown and decided on the ruling on June 26, 2013. Two days later, the lifting of a stay by the U.S. Court of Appeals for the Ninth Circuit allowed the same-sex marriages to recommence.

California has provided benefits to sames-sex partners of state employees since 1999.[8]

SB 1306 was introduced on February 2014 by Senator Leno and has repealed remaining language in the Family Code that discriminates against same-sex couples, such as Proposition 22 (2000).

Adoption and family planning[edit]

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

Discrimination protection[edit]

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.[9]

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.[10] 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.[11][12]

Federal Income Tax[edit]

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.[13]

Hate crime laws[edit]

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[edit]

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[edit]

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.[14]

Gender reassignment[edit]

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.[15]

Health of LGBT people[edit]

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.” [16]

Educational inclusion[edit]

FAIR Education Act[edit]

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[edit]

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.[17]

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 a 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.[18] However, the law is currently tied up in the courts and on hold. According to Frank Lee, chair of Bay Area Pacific Justice Institute who is leading the fight against AB1266.

Ban on sexual orientation change efforts[edit]

In August 2012, the California State Assembly approved SB 1172[19] prohibiting mental health providers from engaging in sexual orientation change efforts (such as conversion therapy) with minors, signed into law by Governor Jerry Brown on September 29, 2012.[20] The law would have gone into effect January 1, 2013, but is 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 will hold a conference on whether or not to grant certiorari to Pickup v. Brown.[21] Certiorari was denied by the Supreme Court on June 30, 2014.[22]

Ballot initiatives[edit]

Ballot initiatives on gay rights statewide in California
Year Proposition % of Califorinia 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)[23]
Yes 49.5 49.5
 
No 50.4 50.4
 
November 6, 1990 Proposition K (establish domestic partnerships)[24]
Yes 54 54
 
No 45.9 45.9
 
November 5, 1991 Proposition K (repeal domestic partnerships)[25]
Yes 40.8 40.8
 
No 59.1 59.1
 
March 2, 2004 Proposition D (expand domestic partnerships)[26]
Yes 65.07 65.07
 
No 34.93 34.93
 

Summary table[edit]

Homosexuality legal Yes (since 1976)
Equal age of consent Yes (since 1976)
Anti-discrimination laws for sexual orientation Yes (since 1992)
Anti-discrimination laws for gender identity or expression Yes (since 2003)
Recognition of same-sex couples as domestic partners Yes (since 1999)
Step adoption by same-sex couples Yes (since 2003)
Joint adoption by same-sex couples Yes (since 2003)
Access to IVF for lesbians Yes (since 1976)
Same-sex marriages Yes (Legal for five months in 2008, re-legalized in 2013)
Commercial surrogacy for gay male couples Yes
Ban on sexual orientation conversion therapy Yes (since 2013)
MSMs allowed to donate blood No

See also[edit]

References

  1. ^ a b http://www.advocate.com/crime/2014/09/29/california-becomes-first-state-ban-gay-trans-panic-defenses
  2. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 9, 2011
  3. ^ "The Bakersfield Californian on". Newspapers.com. 1977-08-19. Retrieved 2014-06-29. 
  4. ^ Carla Marinucci, Chronicle Political Writer (2009-01-09). "Brown's switch on Prop. 8 reflects times". SFGate. Retrieved 2014-06-29. 
  5. ^ "The San Bernardino County Sun on". Newspapers.com. 1977-08-12. Retrieved 2014-06-29. 
  6. ^ "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. 
  7. ^ "California Family Code Section 299.2". Onecle. 
  8. ^ National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
  9. ^ "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. 
  10. ^ By 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. 
  11. ^ "Sexual Orientation and Gender Discrimination Under California Law | Shegerian & Associates, Inc". Shegerianlaw.com. 2013-12-30. Retrieved 2014-06-29. 
  12. ^ Villaraigosa. "AB 1001 Assembly Bill - ENROLLED". Leginfo.ca.gov. Retrieved 2014-06-29. 
  13. ^ New York Times: Tara Siegel Bernard, "Tax Season Gets Trickier for Some Gay Couples," March 29, 2011, accessed April 5, 2011
  14. ^ "Calif. gay inmates get conjugal visits - Life". MSNBC. 2007-02-06. Retrieved 2012-11-09. 
  15. ^ http://www.advocate.com/politics/transgender/2014/09/28/new-law-gives-trans-californians-respect-after-death
  16. ^ http://thinkprogress.org/lgbt/2014/09/29/3573175/california-panic-condoms-health/
  17. ^ "Bill Text - AB-1266 Pupil rights: sex-segregated school programs and activities". Leginfo.legislature.ca.gov. Retrieved 2013-12-05. 
  18. ^ Sandeen, Autumn (2013-11-11). "Signature Count Released In AB 1266 Referendum Signature Drive". The Transadvocate. Retrieved 2013-12-05. 
  19. ^ "Senate Bill No. 1172". Leginfo.legislature.ca.gov. Retrieved 2013-11-02. 
  20. ^ Wyatt Buchanan (September 29, 2012). "State bans gay-repair therapy for minors". San Francisco Chronicle. Retrieved October 1, 2012. 
  21. ^ 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. 
  22. ^ http://www.supremecourt.gov/orders/courtorders/063014zor_n648.pdf
  23. ^ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1989-11-07. Retrieved 2012-11-09. 
  24. ^ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1990-11-06. Retrieved 2012-11-09. 
  25. ^ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1991-11-05. Retrieved 2012-11-09. 
  26. ^ "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 2004-02-03. Retrieved 2012-11-09.