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
SB 1441 (Kuehl)
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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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