BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Joseph L. Dunn, Chair 2005-2006 Regular Session SB 1441 S Senator Kuehl B As Introduced Hearing Date: April 25, 2006 1 Government Code 4 GMO:rm 4 1 SUBJECT Discrimination: State Programs and Activities DESCRIPTION This bill would add "sexual orientation" to the characteristics on which discrimination may not be based, in any program or activity that is conducted, operated, or administered by the state or any state agency or by any agency funded directly by the state or that receives any financial assistance from the state. The bill also would incorporate the definition of "sex" and "sexual orientation" contained in the Fair Employment and Housing Act into this provision relating to state and state-funded programs or activities, and clarify that the perception of any of the characteristics listed in the anti-discrimination statute is also covered. BACKGROUND Various statutes, such as the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act, prohibit discrimination in employment, housing, public accommodation and services provided by business establishments on the basis of specified personal characteristics such as sex, race, color, national origin, religion, and disability. Over time, these statutes were amended to include other characteristics such as disability, medical condition, marital status. Also over time, other statutes were amended to reflect the state's public policy against (more) SB 1441 (Kuehl) Page 2 discrimination in all forms. SB 1441 would harmonize the provision prohibiting discrimination in the conduct or operation of state or state-funded programs or activities (Gov. Code Sec. 11135) with those other anti-discrimination statutes by adding "sexual orientation" to the list of protected characteristics. CHANGES TO EXISTING LAW Existing law, the Fair Employment and Housing Act (FEHA) prohibits discrimination in housing and employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,, or sexual orientation. FEHA defines "sex" and "sexual orientation," as well as other terms used throughout the FEHA, and includes the perception of any of the named characteristics as a prohibited basis for discrimination. [Government Code Sec. 12920 et seq. All references are to the Government Code unless otherwise indicated.] Existing law, the Unruh Civil Rights Act protects persons within this state from discrimination on the basis of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation, in public accommodations and facilities and services in business establishments. Under this act, "sex" and "sexual orientation" are defined by incorporating the definitions of those terms in the FEHA. [Civil Code Sec. 51.] Existing law prohibits discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, color, or disability in any program or activity conducted, operated, administered, or funded by the state or any state agency. [Gov. C. Sec. 11135.] This bill would add, to the list of characteristics on which discrimination may not be based in the conduct or operation of state or state-funded programs or activities, "sexual orientation." The bill would define "sex" and "sexual orientation" under SB 1441 (Kuehl) Page 3 this provision (Gov. Code Sec. 11135) by referencing the definitions of those terms in Gov. Code Sec. 12926 (FEHA). The bill would state that the bases for non-discrimination under this provision includes the perception that a person has any of those named characteristics or is associated with another person who has or is perceived to have any of those characteristics. COMMENT 1. Need for the bill According to the sponsor of the bill, Equality California, state and local governments provide many important services and programs that should not be denied to persons on the basis of their sexual orientation or gender identity. California public policy, they state, is clear that individuals should be protected under the law against discrimination based on sexual orientation or gender identity. While major anti-discrimination laws already list sexual orientation as a characteristic that may not be used to deny employment, housing, or access to public accommodation, they contend that Sec. 11135, which prohibits state and local agencies and their instrumentalities and contractors for programs and services from discrimination on the basis of race, sex, nationality, religion, disability, medical condition, or marital status, does not specifically protect persons from discrimination on the basis of sexual orientation or gender identity. This bill would cure that deficiency in Sec. 11135. 2. Bill would import FEHA definitions of "sex" and "sexual orientation" into Sec. 11135 and add perception (gender identity) to the list Sec. 11135 prohibits discrimination in the conduct, operation, or administration of programs or activities by the state, a state agency, or any agency that is directly funded or that receives funding from the state or state agency. Currently, the characteristics listed in the statute on which discrimination may not be based are: race, national origin, ethnic identification, religion, SB 1441 (Kuehl) Page 4 age, sex, color, or disability. This bill would add "sexual orientation" to this list. The bill also would import the FEHA definitions of "sex" and "sexual orientation" into the Sec. 11135. FEHA defines "sex" to include pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, and includes a person's gender as defined in Penal Code Sec. 422.56 (includes gender identity and gender related appearance and behavior whether or not stereotypically associated with a person's assigned sex at birth). FEHA defines "sexual orientation" to mean heterosexuality, homosexuality, and bisexuality. This bill would also incorporate into Sec. 11135 the interpretive provision, found in other anti-discrimination or hate crime statutes (such as Penal Code 422.56 et seq.), that the list of characteristics includes the perception that the person has any of those listed characteristics or is associated with another person who has or is perceived to have any of those protected characteristics. 3. State and local programs and services that would be affected State and local governments provide many important services and programs. These include police and fire protection, recreational programs, social services, health care clinics, and public schools. This bill would extend prohibitions against discrimination on the basis of sexual orientation and gender identity to include all services, programs and activities provided by state and local governments or any of their instrumentalities or agencies. Because Gov. Code Sec. 11135 covers not only the state but also state agencies and any program or activity at the local level that receives funding from the state, the impact of this bill is both wide-ranging and deep. It will also affect contractors with the state (such as nonprofits), where the services provided locally are funded directly by the state or where the contractor SB 1441 (Kuehl) Page 5 receives any financial assistance from the state. Some of the programs that would be affected by this bill are: Medi-Cal, State Disability Insurance, CalWORKS, food stamp programs, Unemployment Insurance, Workers' Compensation, financial aid programs administered by the University of California or the California State University, child support services programs and services for veterans, legal services programs, home loan assistance programs, licensing of businesses, government contracting and procurement activities, and voter registration. 4. Prohibition against discrimination extends to perceptions This bill would add to Sec. 11135 an interpretation, found in many other anti-discrimination statutes, that a person is protected from discrimination even if he or she is only perceived to have any of the named characteristics or he or she is associated with someone who has or is perceived to have any of those named characteristics. This clarification would greatly expand the effect this bill would have on programs and services provided or paid for by the state or a state agency. Proponents gave the following examples of governmental discrimination that this bill would prohibit: Denying voter registration to a person who is 18 years of age because he or she "looks too young"; Refusing public health care benefits to a person based on the increased insurance costs due to the person's dependent child who is HIV positive; Denying food stamps to a person who is perceived to be a noncitizen when in fact he or she would qualify for the program; Discrimination against a person who wants to adopt a child because his or her spouse has a disability. In fact, this interpretation of the application of the prohibition against discrimination is already reflected in the major anti-discrimination statutes, i.e., FEHA [Sec. 12926(m)] and the Unruh Civil Rights Act [Civ. C. SB 1441 (Kuehl) Page 6 Sec. 51(e)(5).] 5. Support and opposition Proponents of the bill argue that this extension of existing law would merely ensure that state and local governments treat all citizens equally. "We strongly support public policy that denies funds to programs or activities that discriminate against individuals based on these enumerated characteristics, including sexual orientation, and think such prohibition is past due." [Letter from the Aids Project of Los Angeles, March 28, 2006.] The Attorney General, in support of SB 1441, states: "[t]his bill serves California's long-standing and compelling interest in preventing discrimination." [Letter dated April 11, 2006.] The California Association of Nonprofits adds, "CAN has long stood for fair and equal treatment of all Californians in both employment and services provided with the assistance of public dollars. We believe that all must have equal access to the services provided by nonprofits with public funding in order for the nonprofit-government partnership to work efficiently, effectively and fairly. SB 1441 is a further step in the long path toward achieving that goal." [Letter dated April 14, 2006.] In opposition, the Capitol Resource Institute states that SB 1441 "would inevitably result in reverse discrimination where individuals and businesses are discriminated against because of their bona fide religious convictions." Support: AIDS Project Los Angeles; Asian American for Civil Rights & Equality; American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO; Americans for Civil Rights & Equality; American Civil Liberties Union; Attorney General Bill Lockyer; California Association for Nonprofits; California Faculty Association; California School Employees Association; California Teachers Association; Gay and Lesbian Alliance of the Central Coast; Lambda Letters Project; Mexican American Legal Defense and Education Fund (MALDEF); National SB 1441 (Kuehl) Page 7 Association of Social Workers, California Chapter; National Center for Lesbian Rights; San Francisco AIDS Foundation Opposition: California Family Council; Capitol Resource Institute HISTORY Source: Equality California Related Pending Legislation: None Known Prior Legislation: SB 105 (Burton, Ch. 1102, Stats. 2002) required governmental entities to provide access to assistive technology, pursuant to the ADA. SB 302 (Kuehl, Ch. 784, Stats. 2003) made the provisions of Sec. 11135 applicable to the California State University. AB 196 (Leno, Ch. 164, Stats. 2003) imported into FEHA the definition of "gender" from hate crimes statutes that prohibit violence against any person on the basis of gender or perceived gender. **************