LGBT rights in California

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LGBT rights in California
Map of USA CA.svg
Same-sex sexual intercourse legal statusLegal since 1976
Gender identity/expressionTransgender persons allowed to change legal gender
Discrimination protectionsSexual orientation and gender identity or expression protections (see below)
Family rights
Recognition of
relationships
Same-sex marriages since 2013;
Domestic partnerships since 1999
AdoptionSame-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 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 that match their gender identity. Mental health providers are prohibited from participating in conversion 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 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, allowing 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 trans panic defenses in murder trials.[1] In 2015, California became the first state to pay sex reassignment surgery for transgender prison inmates.[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 large majority of Californians support same-sex marriage.

Law regarding same-sex sexual activity[edit]

Harvey Milk was one of the earliest known LGBT activists in California and the United States, and the first LGBT elected official in the state.

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 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.[3]

Recognition of same-sex relationships[edit]

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.[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 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.

A California LGBT flag at a Prop 8 rally

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[edit]

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]

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] 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".[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)[edit]

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.[15] 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.[16]

During its passage, some concern was expressed that, by repealing the same-sex marriage ban, 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-sex 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, it 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)[edit]

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, 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.[22]

Adoption, surrogacy and family planning[edit]

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

Altruistic or commercial surrogacy has been legal in California since 1990. In September 2012, Californian Democrat Governor Jerry Brown signed several surrogacy bills into law.[23][24]

Discrimination protections[edit]

The Castro District is a gay neighborhood in San Francisco, known internationally as a symbol of LGBT activism.

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.[25]

In 1992, after the AB 101 Veto Riots, where Governor Pete Wilson vetoed a law which would have guaranteed protections from discrimination on the basis of sexual orientation by private employers, Governor Pete 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.[26] 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. Gender identity or expression was not protected until 2003.[27][28] 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.

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.[29]

Hate crime law[edit]

SB 1234 clarifies protections based on sexual orientation and gender identity or expression, alongside other categories, 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] Both Rhode Island and Illinois have also repealed the gay and trans panic defence.[30]

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.[31]

Gender identity and expression[edit]

Sex and gender changes are legal in the state. Sex reassignment surgery is not a requirement to change one's 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.[32] In 2015, California became the first state in pay sex reassignment surgeries for transgender prison inmates.[2]

Since January 1, 2018, California has legally provided "gender X" and gender-neutral birth certificates.[33][34]

Gender-neutral bathrooms[edit]

California became the first state in the U.S. to legally require all single occupancy bathrooms to be gender-neutral. The law to this effect went into force on March 1, 2017.[35][36][37]

Health of LGBT people[edit]

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."[38]

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 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 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 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 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 the gender they were assigned at birth. The law took effect in January 2014.[39]

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. However, the effort failed after it fell "about 17,000 signatures short of the 504,760 valid names needed to go before voters."[40]

Conversion therapy[edit]

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.[41][42] 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 for the ban on conversion therapy 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.[43] Certiorari was denied by the Supreme Court on June 30, 2014.[44]

California was the first state with such a law.

HIV legal reform[edit]

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.[45][46][47]

Law enforcement[edit]

From January 1, 2019, law enforcement in California will be legally required to undergo mandatory sensitivity training on LGBT issues, a first for the United States.[48][49][50][51]

Public opinion and attitudes[edit]

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.[53]

The aforementioned PRRI poll also showed that support for 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.[53]

Ballot initiatives[edit]

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.

Statewide[edit]

Ballot initiatives on LGBT rights in California
Year Proposition % of California voters
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
 

City-level[edit]

Ballot initiatives on domestic partnerships in San Francisco
Year Proposition % of San Francisco voters
November 7, 1989 Proposition S (establish domestic partnerships)[54]
Yes 49.5 49.5
 
No 50.4 50.4
 
November 6, 1990 Proposition K (establish domestic partnerships)[55]
Yes 54 54
 
No 45.9 45.9
 
November 5, 1991 Proposition K (repeal domestic partnerships)[56]
Yes 40.8 40.8
 
No 59.1 59.1
 
March 2, 2004 Proposition D (expand domestic partnerships)[57]
Yes 65.07 65.07
 
No 34.93 34.93
 

Summary table[edit]

Same-sex sexual activity legal Yes (Since 1976)
Equal age of consent Yes (Since 1976)
Anti-discrimination laws in all areas Yes (Since 1992 for sexual orientation and since 2003 for gender identity)
Same-sex marriages Yes (Legal for five months in 2008, re-legalized in 2013)
Recognition of same-sex couples as domestic partners Yes (Since 1999)
Joint and stepchild adoption by same-sex couples Yes (Since 2003)
Lesbian, gay and bisexual people allowed to serve openly in the military Yes (Since 2011)
Transgender people allowed to serve openly in the military Yes (Since 2018)
Right to change legal gender Yes
Legal access to single gender-neutral bathrooms Yes (Statewide since 2017)[35][36]
Conversion therapy banned on minors Yes (Since 2013)
Access to IVF for lesbians Yes (Since 1976)
Commercial surrogacy for gay male couples Yes (Since 1990)
MSMs allowed to donate blood No/Yes (1 year deferral period)

See also[edit]


References[edit]

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  2. ^ a b Cavanaugh, Maureen (2015-09-25). "Transgender In Prison: How California's New Guidelines Will Be Implemented". KPBS. Retrieved 2015-10-28.
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  17. ^ "Calif. Senate advances bill to remove 'man and woman' from marriage laws". LGBTQ Nation. May 1, 2014.
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  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.
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  23. ^ GOVERNOR SIGNS CALIFORNIA SURROGACY BILL
  24. ^ What are the State Laws in California for Surrogacy?
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  32. ^ New Law Gives Trans Californians Respect After Death
  33. ^ Californians Will Soon Have Nonbinary as a Gender Option on Birth Certificates. The New York Times, October 19, 2017
  34. ^ SB-179 Gender identity: female, male, or nonbinary
  35. ^ a b GOVERNOR SIGNS CALIFORNIA “ALL-GENDER” RESTROOM BILL
  36. ^ a b California becomes first US state to introduce gender-neutral bathroom law
  37. ^ California Governor Jerry Brown Approves Bill For Gender-Neutral Bathrooms
  38. ^ 4 New Groundbreaking Laws That Protect LGBT People In California
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  44. ^ MONDAY, JUNE 30, 2014 - CERTIORARI -- SUMMARY DISPOSITIONS
  45. ^ California Governor Jerry Brown Legalizes HIV-Positive Organ Donation And Transplantation
  46. ^ Bill passes in CA to allow HIV-positive organ donation
  47. ^ It's now legal to donate HIV-positive organs in California
  48. ^ Law Enforcement Must Undergo Sexual Orientation And Gender Identity Training
  49. ^ Political Notebook: Gov Brown signs a dozen LGBT bills into law
  50. ^ AB-2504 Peace officer training: sexual orientation and gender identity
  51. ^ VICTORY IN SACRAMENTO: A SUCCESSFUL 2018 LEGISLATIVE YEAR FOR LGBTQ CALIFORNIANS
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