LGBT rights in California
|Status||Legal since 1976|
|Gender identity||Transgender persons allowed to change legal gender|
|Discrimination protections||Sexual orientation and gender identity or expression protections (see below)|
|Recognition of relationships||Same-sex marriages since 2013;|
Domestic partnerships since 1999
|Adoption||Same-sex couples may adopt|
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 1970s. Same-sex sexual activity has been legal in the state since 1976. Discrimination protections regarding sexual orientation and gender identity or expression were adopted statewide in 2003. Transgender people are also permitted to change their legal gender on official documents without any medical interventions, and mental health providers are prohibited from engaging in conversion therapy on minors.
California 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 U.S. 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, permitting stepchild 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 transgender panic defenses in murder trials. 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 that match their gender identity. 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. A 2017 survey from the Public Religion Research Institute showed that 66% of Californians supported same-sex marriage.
History and legality of same-sex sexual activity
Prior to European settlement and colonization in the 18th century, numerous Native American groups lived in the region. Among these, many recognize a "third gender" role in their societies (nowadays also called "two-spirit"). Male-bodied individuals who behave and act as women and perform typically feminine tasks are known as yaawa among the Atsugewi, kwit or cuit among the Luiseño, tüdayapi among the Northern Paiute, clele among the Wailaki, 'aqi among the Chumash, wergern among the Yurok, and í-wa-musp among the Yuki people. Female-to-male individuals are known as brumaiwi among the Astugewi and musp-íwap náip among the Yuki. Similarly, among the Nomlaki and the Klamath and Modoc peoples, respectively, walusa and t'winiːq individuals form a "third gender" alongside male and female. The Yokuts recognize similar terms. In the Kings River Yokuts language, it is tonoo'tcim, whereas it is tonocim in the Palewyami language. There were no known legal or social punishments for engaging in homosexual activity in these societies.
Sodomy laws were first enacted during the Spanish period. The general openness or indifference towards homosexuality quickly disappeared with the arrival of Christianity, which has traditionally regarded homosexuality as sinful. In 1850, shortly after having joined the United States, California adopted a criminal code prohibiting sodomy, both heterosexual and homosexual, with 1 to 14 years' imprisonment. Over the following years, numerous people were convicted of sodomy, and the state law was amended to include fellatio (oral sex) and cunnilingus in 1915.
In 1909, California passed a law providing for the possible sterilization of "moral or sexual perverts". By 1948, 19,042 people had been sterilized under the law. In 1950, the state Attorney General issued an opinion that sterilization of inmates for reasons other than therapeutic was probably unconstitutional. At that time, California accounted for the most sterilization cases of any state, having more than all states combined. In 1951, the law was amended to remove "perversion" as a ground for sterilization.
From the mid-20th century onwards, debate surrounding the sodomy law became increasingly more mainstream. A bill was introduced in 1975 to repeal the state's sodomy statute.
In 1972 and 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 adult law for residents over 18 years old, which restricted existing laws on sodomy or oral copulation for same-sex or opposite-sex couples to genuinely criminal instances alone, was passed in May 1975 and took effect the following year.
However, a discrepancy involving the age of consent exists under Californian law. The law states that if an adult is convicted of consensual vaginal intercourse with a minor between the age of 14 and 17, and if the adult is within 10 years of the minor, the judge can decide whether the person should be listed on the sex offender registry. On the other hand, if a gay man has consensual sex with a minor, 14 to 17, the law states that he must be placed on the sex offender list regardless. In September 2019, a bill to rectify this unequal treatment was blocked in the California Assembly by Lorena Gonzalez.
In February 2020, the black and LGBT civil rights activist Bayard Rustin was posthumously pardoned by Governor Gavin Newsom. California is currently considering a law to pardon gay and bisexual men convicted under the state's historical anti-gay law, similar to the UK's Alan Turing law.
Recognition of same-sex relationships
From the enactment of legislation in 1971 to replace gendered pronouns with gender-neutral pronouns until 1977, the California Civil Code 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 Jerry Brown.
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.
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 California Domestic Partner Rights and Responsibilities Act of 2003 (effective January 1, 2005), same-sex civil unions or domestic partnerships performed in other states or countries are considered equivalent to California's domestic partnerships.
Proposition 22, an initiative passed by voters in 2000, forbade the state from recognizing same-sex marriages. This initiative was struck down in May 2008 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 the 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 U.S. 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 Mark Leno and signed by Governor Jerry Brown in July 2014, updated the Family Code to reflect same-sex marriage 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. 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.
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. The act 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". The law provides no label to be used in place of "marriage" to describe these relationships; they are not "domestic partnerships". 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), 308.5 (Proposition 22) of the Family Code, and amended Section 300 to be gender-neutral among other sections as well. The legislation removed the statutory reference to marriage as a union "between a man and a woman" from the state's Family Code and updated the law with gender-neutral terms to apply to same-sex marriages as well as heterosexual ones.
During its passage, some concern was expressed that, by repealing the same-sex marriage ban, SB 1306 breached the separation of powers as the State Assembly 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 any more than the Assembly can. In light of In Re Marriage Cases and Hollingsworth v. Perry, which collectively forbade the enforcement of any law which would prohibit same-sex couples from marrying, it was determined by the Assembly Judiciary Committee that the Assembly 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. On June 30, it passed the Assembly in a 51–11 vote. It was signed by the Governor on July 7, 2014 and took effect on January 1, 2015. The definition of marriage in California is now the following:
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 introduced by Senator Hannah-Beth Jackson that updated California law similarly to SB 1306. The California lower house approved the bill by a vote of 63–1 with amendments, and passed the state Senate 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 went into effect on January 1, 2017.
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.
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.
Adoption, surrogacy and family planning
Same-sex adoption has been legal since 2003 and lesbian couples have been allowed to access artificial insemination since 1976.
Both gestational and traditional surrogacy arrangements are recognized as valid in the state of California. In September 2012, Governor Jerry Brown signed several surrogacy bills into law. Gay male couples are permitted to undertake such contracts under the same terms and conditions as different-sex couples.
Lesbian couples have access to in vitro fertilization. State law recognizes the non-genetic, non-gestational mother as a legal parent to a child born via donor insemination. Initially, the couple had to be either married or in a domestic partnership for the non-biological mother to be automatically recognized. However, a law passed in 2019, and taking effect on 1 January 2020, grants automatic recognition for unmarried couples as well.
Extensive protections for LGBT people exist under California law, particularly for housing, credit, public accommodations, 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.
The Unruh Civil Rights Act, section 51 of the California Civil Code, enacted in 1959, did not expressly include a prohibition against discrimination by businesses based on sexual orientation until 2005; however, California courts interpreted the law to prohibit such discrimination as early as 1984 in Rolon v. Kulwitzky, an interpretation upheld in later decisions as well.
In 1992, after the AB101 Veto Riot, where Governor Pete Wilson vetoed a law which would have guaranteed protections from discrimination on the basis of sexual orientation by private employers, Governor Wilson reversed course and signed legislation 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. Effective in 2000, AB 1001 further reformed the California Fair Employment and Housing Act of 1959 and broadened employment, housing, and credit protections for gay men, lesbians, and bisexuals. The law was expanded to protect transgender people from unfair discrimination in 2003. In September 2005, Governor Arnold Schwarzenegger signed into law AB 1400, the Civil Rights Act of 2005, ensuring that state laws prohibiting discrimination in public accommodations include gender identity, sexual orientation and marital status.
Hate crime law
California law clarifies protections against hate crimes based on sexual orientation and gender identity or expression, alongside other categories. State law provides penalty enhancements for a crime motivated by the victim's perceived or actual sexual orientation or gender identity.
Transgender and intersex rights
Sex and name changes are legal in the state. Transgender people are permitted to change their legal gender on official documents, such as birth certificates, driver's licenses or IDs. The applicant needs to submit to the California Department of Public Health a certified copy of a court order that changes their sex or an affidavit attesting, under penalty of perjury, that the request for a change of sex is to reflect the applicant's gender identity and not for any fraudulent purposes. State law does not require that the applicant undergo sterilization, sex reassignment surgery or any medical interventions, but he or she may undergo such procedures if they wish. In addition, official documents have three sex descriptors, that is "M", "F" and "X".
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. In 2015, California became the first state to pay sex reassignment surgeries for transgender prison inmates.
State law bans health insurance providers from discriminating against transgender patients and from excluding coverage for transgender-specific care. State Medicaid policy also explicitly includes medical transgender-related health care. In March 2017, California became the first state in the U.S. to require all single occupancy bathrooms to be marked as gender-neutral.
In February 2019, a bill was introduced to the California State Assembly to ban medical interventions on intersex babies, a first for the United States. The bill failed in a Senate committee in January 2020.
Health of LGBT people
In 2014, a new law was passed, according to which doctors, nurses, and other healthcare 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."
Gay panic and trans panic defenses
California law prohibits "discrimination, harassment, intimidation, and bullying based on actual or perceived characteristics including immigration status, disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics". The state's anti-bullying also includes a prohibition on "cyber sexual bullying", encourages school districts to inform pupils regarding available information and resources regarding the dangers and consequences of bullying, and directs the Department of Education to develop an online help tool to assist all school staff, school administrators, parents, pupils, and community members in increasing their knowledge of the dynamics of bullying and cyberbullying.
FAIR Education Act
The FAIR Education Act is a California law which was signed into law on 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 amended 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 Act mandates that history and social studies classes explore LGBT history. This can include reading children's books with same-sex parents or learning about the LGBT rights movement, the White Night riots and the Moscone–Milk assassinations, depending on age and grade.
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 Assemblyman Tom Ammiano and signed into law by Governor Jerry Brown. The law extended gender identity and expression discrimination protection to transgender and gender-nonconforming 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 the gender they were assigned at birth. The law took effect in January 2014.
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 worked with the aforementioned groups. However, the effort failed after it fell "about 17,000 signatures short of the 504,760 valid names needed to go before voters."
California Healthy Youth Act 2016
Sex education in California is regulated by the California Healthy Youth Act 2016. Under the Act, the lessons must be "medically accurate" and "age-appropriate". They cover a range of topics, including healthy relationships, how to avoid unintended pregnancies and infection by sexually transmitted diseases, domestic violence, contraceptives, and abstinence. Discussions on sexual orientation also take place in higher grades.
In August 2012, the California State Assembly approved SB 1172 prohibiting mental health providers from engaging in sexual orientation change efforts (such as conversion therapy) with LGBT minors. It was signed into law by Governor Jerry Brown on September 29, 2012. 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 U.S. Ninth Circuit Court of Appeals suspended the injunction on SB 1172 and rejected the plaintiffs' claims against allowing the conversion therapy ban 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. Certiorari was denied by the Supreme Court on June 30, 2014.
AB 2943, a bill by Assemblyman Evan Low which would have extended the ban to paid conversion therapy for adults, was approved in 2018 but withdrawn by Low before final approval. It would have been the first statewide ban applying to adults.
HIV legal reform
On May 27, 2016, California Governor Jerry Brown signed Senate Bill 1408 into law, effective immediately, that had recently unanimously passed the California State Legislature. The law 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 the federal HIV Organ Policy Equity Act, which reversed the federal ban on this procedure back in 2013.
Public opinion and attitudes
Support for LGBT rights and same-sex marriage have evolved significantly in the past decades.
The first known opinion poll surveying attitudes toward same-sex marriage in California was commissioned in 1977 by Field Poll. It showed that 28% of Californians supported same-sex marriage, while 59% were opposed. Over the following years, support slowly increased, reaching around 40% in the early 2000s, according to Field Poll. In 2008, Field Poll published a poll showing for the first time in the state's history a majority in favor of same-sex marriage. This majority stabilized during the early 2010s, until reaching 60% in 2013. According to a 2017 Public Religion Research Institute (PRRI), 66% of Californians supported same-sex marriage, whereas 23% were opposed.
The aforementioned PRRI poll also showed that anti-discrimination laws covering sexual orientation and gender identity enjoyed wide popular support. 73% were in favor of such laws, while 20% were opposed. Similarly, 63% of Californians expressed opposition to religious-based refusals to serve LGBT people. 28% expressed support.
|% support||% opposition||% no opinion|
|Public Religion Research Institute||January 2-December 30, 2019||5,605||?||76%||18%||6%|
|Public Religion Research Institute||January 3-December 30, 2018||5,578||?||73%||21%||6%|
|Public Religion Research Institute||April 5-December 23, 2017||7,260||?||73%||20%||8%|
|Public Religion Research Institute||April 29, 2015-January 7, 2016||7,671||?||75%||21%||4%|
Several LGBT-specific ballot initiatives have been held in California over the years. The first was Proposition 6, the Briggs Initiative, which would have barred gays and lesbians from working in public schools. The initiative failed, despite polls initially showing support by a large margin. In the 2000s, two same-sex marriage initiatives were voted upon, Proposition 22 and Proposition 8, both successful.
|Year||Proposition||% of California voters|
|November 7, 1978||California Proposition 6|
|March 7, 2000||California Proposition 22|
|November 4, 2008||California Proposition 8|
|Year||Proposition||% of San Francisco voters|
|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)|
|Same-sex sexual activity legal||(Since 1976)|
|Equal age of consent||(Since 1976)|
|Anti-discrimination laws for sexual orientation||(Since 1992 in employment, since 2000 in housing, and since 2005 in public accommodations)|
|Anti-discrimination laws for gender identity||(Since 2003 in employment and housing, and since 2005 in public accommodations)|
|Same-sex marriages||(Legal for five months in 2008, re-legalized in 2013)|
|Recognition of same-sex couples as domestic partners||(Since 1999)|
|Joint and stepchild adoption by same-sex couples||(Since 2003)|
|Lesbian, gay and bisexual people allowed to serve openly in the military||(Since 2011)|
|Transgender people allowed to serve openly in the military|
|Right to change legal gender|
|Legal access to single gender-neutral bathrooms||(Since 2017)|
|Intersex minors protected from invasive surgical procedures|
|Conversion therapy banned on minors||(Since 2013)|
|Third gender option||(Since 2019)|
|LGBT anti-bullying law in schools and colleges|
|Gay and trans panic defense banned||(Since 2014)|
|Access to IVF for lesbian couples||(Since 1976)|
|Surrogacy arrangements legal for gay male couples|
|MSMs allowed to donate blood||/ (Since 2020; 3-month deferral period)|
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