LGBT rights in California

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 A consenting adults law for residents over 18 years old, which repealed existing laws on sodomy or oral copulation for same-sex or opposite-sex couples, was passed in 1975. Laws against consensual sodomy and oral copulation by homosexual, unmarried and married heterosexual couples were repealed in May 1975.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^[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 is also poised to sign 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)".

Adoption and family planning

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

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.^[10]

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.^[11] 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.^[12][13]

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.^[14]

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.^[15]

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.^[16] 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." ^[17]

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.^[18]

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.^[19] However, the law is still in effect.

Ban on sexual orientation change efforts

In August 2012, the California State Assembly approved SB 1172^[20] 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.^[21] 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 will hold a conference on whether or not to grant certiorari to Pickup v. Brown.^[22] Certiorari was denied by the Supreme Court on June 30, 2014.^[23]

Since 2015, New Jersey, Illinois, Oregon and Washington D.C. have similar laws.

Ballot initiatives

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)
Single-person restrooms with gender-segregated signage (equipped with a lock) are given new signs saying "All-Gender Restroom" (by policy/ law/ordinance)	/ City ordinances in Cathedral City[28] and West Hollywood.[29] A statewide bill is pending[30] as well as a pending ordinance in San Fransisco.[31]
MSMs allowed to donate blood	(Federal policy bans gay and bi men from donating blood for 1 year)

See also

• LGBT history in California

References