BILL ANALYSIS
SB 1441
Page 1
Date of Hearing: June 20, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1441 (Kuehl) - As Introduced: February 22, 2006
SENATE VOTE : 23-13
SUBJECT : DISCRIMINATION: STATE PROGRAMS AND ACTIVITIES
KEY ISSUE : SHOULD SEXUAL ORIENTATION DISCRIMINATION BE
PROHIBITED IN STATE PROGRAMS AND ACTIVITIES AND THOSE FUNDED BY
THE STATE?
SYNOPSIS
This bill would add sexual orientation to the characteristics
under existing law 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 funded by the
state. It would likewise 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 and association with the characteristics listed in
the anti-discrimination statute are also protected against
discrimination. Supporters state that the bill is necessary to
make this important statutory protection consistent with the
state's public policy against sexual orientation discrimination
as expressed in other civil rights laws. Opponents contend that
the bill will negatively affect religious organizations.
SUMMARY : Prohibits sexual orientation discrimination by state
entities and recipients of state aid. Specifically, this bill :
1)Adds sexual orientation 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.
2)Defines "sex" and "sexual orientation" by referencing the
definitions of those terms in the Fair Employment and Housing
Act (FEHA).
3)Consistently with the FEHA and other statutes, provides that
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non-discrimination includes the perception that a person has
any of the named characteristics or is associated with another
person who has or is perceived to have any of those
characteristics.
EXISTING LAW :
1)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. Code section 11135. All references are to the
Government Code unless otherwise indicated.)
2)Under the Fair Employment and Housing Act (FEHA), prohibits
discrimination in housing and employment on the basis of
sexual orientation in addition to race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, and age.
The 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. (Sec. 12920 et seq.)
3)Under the Unruh Civil Rights Act, protects persons from
discrimination by business establishments on the basis of
sexual orientation in addition to sex, race, color, religion,
ancestry, national origin, disability, medical condition, and
marital status. The Unruh Act defines "sex" and "sexual
orientation" by incorporating the definitions of those terms
in the FEHA. (Civil Code Sec. 51.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : Various statutes, such as the Fair Employment and
Housing Act and the Unruh Civil Rights Act, prohibit
discrimination in employment and housing, and in the provision
of public accommodations and other goods and services by
business establishments on the basis of specified personal
characteristics such as sexual orientation, sex, race, color,
national origin, religion, and disability. These statutes have
been amended over time to reflect the state's evolving public
policy against unreasonable distinctions and disparities, most
recently to include disability, sexual orientation and marital
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status.
In addition to the FEHA and Unruh Acts, Government Code section
11135 prohibits discrimination in purpose and effect by the
state and recipients of state funding or financial assistance on
the basis of race, color, national origin, ethnic group
identification, religion, age, sex, and disability. Notably
absent from the protections is sexual orientation. SB 1441
would harmonize this provision prohibiting discrimination in the
conduct or operation of state or state-funded programs with
FEHA, Unruh and other anti-discrimination statutes by adding
"sexual orientation" to the list of protected characteristics,
and would likewise incorporate related definitions from the
FEHA.
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
sexual orientation or gender identity. California public
policy, the sponsor states, is clear that individuals should be
protected against discrimination based on sexual orientation or
gender identity. Thus, the Government Code provision should be
updated to be made consistent with other laws.
This Bill Imports Accepted Definitions Of "Sex" And "Sexual
Orientation" And Codifies Perception And Association
Protections. The bill would import the FEHA definitions of
"sex" and "sexual orientation" into the section 11135. The 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 section 422.56
(includes gender identity and gender related appearance and
behavior whether or not stereotypically associated with a
person's assigned sex at birth). The FEHA defines "sexual
orientation" to mean heterosexuality, homosexuality, and
bisexuality.
This bill would also amend section 11135 to expressly include
the interpretive provision - found in the FEHA (section
12926(m)), as well as the Unruh Civil Rights Act (Civil Code
Sec. 51(e)(5) and 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
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characteristics. This is a settled principle of
anti-discrimination law, and is reflected in the statute's
existing administrative interpretation. (See, e.g., 5 Cal. Code
of Regs sections 4610 (c), 59300.) These anti-discrimination
laws have long been understood consistently on many definitions
and issues. (E.g., 5 Cal. Code of Regs section 4910; 2 Cal Code
of Regs section 7286.7.)
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 and health care clinics.
This bill would extend prohibitions against discrimination on
the basis of sexual orientation and gender identity to include
all services, programs and activities provided or funded by the
state and its instrumentalities or agencies.
Some of the programs that would be affected by this bill are:
Medi-Cal, CalWORKS, food stamp programs, unemployment and
disability unemployment insurance, workers' compensation,
financial aid programs, child support services programs,
services for veterans, legal services programs, home loan
assistance programs, licensing of businesses, government
contracting and procurement activities, and voter registration.
ARGUMENTS IN SUPPORT: Proponents of the bill argue that the
extension of existing law to include sexual orientation
discrimination would merely ensure that state and local
governments treat all citizens equally. The Mexican American
Legal Defense and Educational Fund states, "California is home
to a diverse population. Californians deserve fair and equal
treatment from their state government and should not fall victim
to discriminatory practices that undermine their civil rights."
The California Commission on the Status of Women writes, "It is
California public policy that individuals should be protected
from discrimination based on sexual orientation. This bill
would help to ensure that all individuals have access to
specified programs and services." The California Association of
Nonprofits adds, "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."
ARGUMENTS IN OPPOSITION: In opposition, Concerned Women for
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America of California contend that the bill "is so broad that it
includes faith based organizations that will be forced to
violate their deeply held religious beliefs to comply with the
state, or look elsewhere for funds." Similarly, the Capitol
Resource Institute was quoted in the Senate Judiciary Committee
analysis as stating that SB 1441 "would inevitably result in
reverse discrimination where individuals and businesses are
discriminated against because of their bona fide religious
convictions."
Prior Related Legislation : AB 677 (Steinberg), Ch. 708, Stats
2001, amended Government Code section 11135 to apply disability
discrimination obligations to the state.
AB 3035 (Judiciary), Ch 300, Stats 2002, added race and national
origin to the protections of section 11135.
SB 105 (Burton), Ch. 1102, Stats. 2002, required governmental
entities to provide access to assistive technology, consistently
with the ADA.
REGISTERED SUPPORT / OPPOSITION (as reported by the Senate
Judiciary Committee) :
Support
Equality California (sponsor)
AIDS Project Los Angeles
American Civil Liberties Union
American Federation of State, County, and Municipal Employees
(AFSCME)
Asian American for Civil Rights & Equality
Attorney General Bill Lockyer
California Association for Nonprofits
California Commission on the Status of Women
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 Association of Social Workers, California Chapter
National Center for Lesbian Rights
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San Francisco AIDS Foundation
Opposition
California Family Council
Capitol Resource Institute
Concerned Women for America of California
Traditional Values Coalition
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334