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)|
|Domestic partnership performable and recognized in the state, civil unions and marriages performed in other jurisdictions recognized. Certain same-sex marriage recognized.|
|California Proposition 8 (2008) limits marriage to man/woman. Prop 8 struck down by Federal Ninth Circuit District Courthouse and Panel. US Supreme Court will rule on Prop 8 case this June 2013.|
|Adoption||Same-sex couples may adopt jointly|
California is considered generally liberal in its policies regarding the LGBT community, and the rights of lesbian, gay, bisexual and transgender people have received greater recognition since 1960 at both the state and municipal level. The state grants extensive recognition to same-sex couples, having been one of the first states to do so. It also provides comprehensive anti-discrimination protection against LGBT persons, and was the first state to ban underage therapy for the purpose of changing one's sexual orientation. Nevertheless, California currently recognizes same-sex marriage only on a limited and conditional basis.
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 A consenting adults law for residents over 18 years old, which repealed existing laws on sodomy or oral copulation for same-sex or opposite-sex couples, was passed in 1975. Laws against consensual sodomy and oral copulation by homosexual, unmarried and married heterosexual couples were repealed in May 1975.
Recognition of same-sex relationships
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.
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 5th, 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 will decide on the ruling in June 2013. If the Supreme Court rules in favor of same-sex marriage in the Perry v. Brown case it could be legalized nationwide, similar to the 1967 Loving v. Virginia US Supreme Court ruled in that case legalizing interracial marriage nationwide.
California has provided benefits to sames-sex partners of state employees since 1999.
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.
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.
Hate crime laws
California SB 1234 clarifies protections of sexual orientation and gender identity or expression alongside other classes against hate crimes.
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.
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.
Sex and gender changes are legal in the state.
|Year||Proposition||% of Califorinia population|
|November 7, 1978||California Proposition 6|
|March 7, 2000||California Proposition 22|
|November 4, 2008||California Proposition 8|
|Year||Proposition||% of San Francisco population|
|November 7, 1989||Proposition S (establish domestic partnerships)|
|November 6, 1990||Proposition K (establish domestic partnerships)|
|November 5, 1991||Proposition K (repeal domestic partnerships)|
|March 2, 2004||Proposition D (expand domestic partnerships)|
|Homosexuality legal||(since 1976)|
|Equal age of consent||[clarification needed]|
|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||[clarification needed]|
|Same-sex marriages||(Proposition 8 ruled unconstitutional by Ninth Circuit Court. Ruling Stayed pending an appeal to the Supreme Court.)|
|MSMs allowed to donate blood|
- William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 9, 2011
- "Full text of AB 205, the California Domestic Partner Rights and Responsibilities Act of 2003". California State Assembly. January 28, 2003 - 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."
- "California Family Code Section 299.2". Onecle.
- National Conference of State Legislatures: "States offering benefits for same-sex partners of state employees", accessed April 16, 2011
- New York Times: Tara Siegel Bernard, "Tax Season Gets Trickier for Some Gay Couples," March 29, 2011, accessed April 5, 2011
- "Calif. gay inmates get conjugal visits - Life". MSNBC. 2007-02-06. Retrieved 2012-11-09.
- "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1989-11-07. Retrieved 2012-11-09.
- "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1990-11-06. Retrieved 2012-11-09.
- "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 1991-11-05. Retrieved 2012-11-09.
- "San Francisco Ballot Propositions Database :: San Francisco Public Library". Sfpl.org. 2004-02-03. Retrieved 2012-11-09.