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)



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          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  
                                                                       




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          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,  
                                                                       




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            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  
                                                                       




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            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.  
                                                                       




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            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  
                                                                       




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                 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.

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