BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AJR 43 (Lara)
As Amended August 7, 2012
Hearing Date: August 15, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Sexual Orientation and Gender Identity
DESCRIPTION
This bill, sponsored by Bienestar Human Services, Inc., would
call upon the Congress of the United States and the President of
the United States to pass legislation that would expressly
include sexual orientation and gender identity in all laws of
the United States created to end discrimination.
BACKGROUND
The Civil Rights Act of 1964, a milestone in federal
legislation, outlawed major forms of discrimination against
racial, ethnic, national and religious minorities, and women.
The act aimed to put an end to the unequal application of voter
registration requirements, racial segregation in schools,
discrimination at the workplace, and by facilities that served
the public. Other civil rights movements have resulted in
federal legislation which offer protections against
discrimination as well, including the Age Discrimination in
Employment Act, the Equal Credit Opportunity Act, the Pregnancy
Discrimination Act, the Family and Medical Leave Act, and the
Fair Housing Act. These federal acts represent the minimum
level of protection that state governments must provide for
individuals within that state, but states are authorized to
create laws which further protect their inhabitants.
California's Fair Employment and Housing Act (FEHA) and Unruh
Civil Rights Act (Unruh) have evolved to include protections for
characteristics above and beyond what is required under federal
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law, such as medical conditions, marital status, and sexual
orientation. These laws reflect the state public policy against
arbitrary discrimination against individuals. AB 887 (Atkins,
Ch. 719, Stats. 2011) further expanded on the protections
offered under California law by clarifying that "gender" under
FEHA and Unruh includes both "gender identity" and "gender
expression" whether or not the gender identity or expression of
an individual would stereotypically be associated with a
person's assigned sex at birth. These changes to existing law
were aimed at ensuring that transgender and other gender
non-conforming individuals would be free from discrimination in
the workplace and regarding housing.
Federal law has expressly recognized protections for the
lesbian, gay, transgender, and queer (LGBTQ) population in two
statutes: the Don't Ask Don't Tell Repeal Law and the Hate
Crimes Prevention Act. (Pub.L. No. 111-321 (Dec. 22, 2010) 124
Stat. 3515; Pub.L. No. 111-84 (Oct. 28, 2009) 123 Stat. 2835.)
These laws enable LGBTQ persons to openly serve in the United
States military and recognize that LGBTQ individuals may be
victims of hate crimes and thereby seek relief under federal
law. However, express provisions similar to those found under
California civil rights law which protect individuals from
discrimination based on sexual orientation and gender identity
are absent from federal law. Accordingly, this bill would call
upon the United States Congress and President of the United
States to pass legislation that would expressly include
protections for sexual orientation and gender identity in all
federal laws created to end discrimination.
CHANGES TO EXISTING LAW
This resolution states that the United States was founded as a
democratic nation, and a central tenet of the law of the United
States is the principle of equal protection and
nondiscrimination under the law.
This resolution states that the Civil Rights Act of 1964 (Pub.
L. No. 88-352 (Jul. 2, 1964) 78 Stat. 241), which makes it
unlawful to terminate, refuse to hire, or otherwise discriminate
with respect to the terms and conditions of employment based on
race, color, national origin, sex, or religion, does not
expressly list sexual orientation or gender identity as
protected characteristics.
This resolution states that the Equal Credit Opportunity Act (15
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U.S.C.S. 1691), which protects against discrimination based on
race, color, religion, national origin, sex, marital status,
age, or to impose different terms or conditions of a loan, does
not expressly list sexual orientation or gender identity among
the protected characteristics.
This resolution states that the Family and Medical Leave Act (29
U.S.C.S. 2601) entitles eligible employees to take job-protected
leave to care for an ailing spouse, but does not expressly
include domestic partners or members of civil unions.
This resolution states that the Fair Housing Act (42 U.S.C.S.
3601 et seq.) prohibits discrimination in the sale, rental, and
financing of dwellings, and in other housing-related
transactions, based on race, color, national origin, religion,
sex, familial status, and disability, but does not expressly
list sexual orientation or gender identity among the protected
characteristics.
This resolution asserts that while there have been recent gains
in protections, nothing can match the safeguards, symbolism, and
promise for all people like the inclusion of sexual orientation
and gender identity alongside race, color, sex, national origin,
religion, age, and disability in this country's landmark federal
antidiscrimination acts.
This resolution asserts that, as in any historical movement, it
will take a broad coalition of individuals, allies, and
organizations who believe in equality to advance this urgent
call to eliminate discrimination based on sexual orientation and
gender identity with the full force of official United States
government policy and power.
This resolution would call upon the United States Congress and
the President of the United States to pass legislation to
expressly include sexual orientation and gender identity in all
laws of the United States created to end discrimination in this
country, and would require that copies of this resolution be
delivered to each member of the Congress and the President of
the United States, and to each presiding officer of each house
of the state legislatures.
COMMENT
1.Stated need for the bill
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The author states:
Our nation's landmark anti-discrimination laws rightfully
protect on the basis of race, color, sex, national origin,
and religion. These laws, however, omit protections for
lesbian, gay, bisexual and transgender, and queer
individuals. As a result, states are currently free to
choose to either protect �lesbian, gay, bisexual,
transgender, and queer (LGBTQ)] individuals or target this
population for further discrimination.
In response to this, AJR 43 urges the President of the United
States and the United States Congress to include sexual
orientation and gender identity in our nation's civil rights
and antidiscrimination laws. This inclusion will
comprehensively extend basic, fundamental human rights to our
nation's LGBTQ population.
The sponsor, Bienestar Human Services writes in support of this
bill:
Without a comprehensive response by the federal government,
LGBTQ Americans continue to be at the mercy of state and
local laws that can either protect them or target them for
discrimination. ? This wide-scale historical and ongoing
discrimination in fundamental human rights based upon
outdated and unjust principles necessitates a comprehensive
response by the federal government.
2.Provisions of resolution are consistent with California law
and federal employee policy
This resolution would urge the United States Congress and the
President of the United States to pass legislation which
expressly includes sexual orientation and gender identity in all
laws of the United States created to end discrimination in this
country. In support of this bill, Equality California states
that "there are significant gaps in federal civil rights laws
that leave �lesbian, gay, bisexual, and transgender (LGBTQ)]
persons vulnerable to discrimination." Echoing this point,
California Church Impact writes:
The principles of inclusion outlined in the Joint Resolution
are the bare minimum that a democratic society should do for
its members �LBGTQ] people are citizens, pay taxes,
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contribute to our economy, enrich our society, and in all
ways deserve the blessings of liberty and justice promised in
our most fundamental documents.
Including �LGBTQ] people as equals under the Civil Rights
laws of this nation confers no harm to others, but eliminates
the gross inequalities that have done harm to them. Basic
equality in credit and housing, in hospital visitation of
loved ones, and in all matters of civil rights, simply
asserts the principles of fairness and equity affirmed by our
national ethos, our Constitution, and our founding leaders.
Similar protections have been extended to federal employees
through administrative law and executive orders. For example,
the Civil Service Reform Act of 1978 prohibits, among other
discriminatory acts, federal employees from discriminating on
the basis of conduct which does not adversely affect the
performance of the applicant or employee. (Pub.L. No. 95-454
(Oct. 13, 1978).) The Office of Personnel Management has
interpreted this prohibition of discrimination based on conduct
to include discrimination based on sexual orientation. (United
States Office of Personnel Management, Addressing Sexual
Orientation Discrimination in Federal Civilian Employment: A
Guide to Employee's Rights found at
(http://www.opm.gov/er/address2/Guide04.asp .) Similarly, Executive Order 13087 (which amended
Executive Order 11478), signed by President Clinton in May of
1998, expresses a uniform policy in federal employment that
prohibits discrimination based on sexual orientation. In part,
the order reads:
It is the policy of the government of the United States to
provide equal opportunity in federal employment for all
persons, to prohibit discrimination in employment because of
race, color, religion, sex, national origin, handicap, age,
or sexual orientation and to promote the full realization of
equal employment opportunity through a continuing affirmative
program in each executive department and agency. This policy
of equal opportunity applies to and must be an integral part
of every aspect of personnel policy and practice in the
employment, development, advancement, and treatment of
civilian employees of the federal government, to the extent
permitted by law. (Emphasis added.)
Acknowledging these gains in protections for the LGBTQ
community, the author writes that "while there have been recent
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gains in federal protections, temporary gains from executive
orders, and piecemeal protections in various states, nothing can
match the protections, symbolism and promise of equality for all
people like the inclusion of 'sexual orientation and gender
identity' alongside 'race, color, sex, national origin and
religion' in landmark federal antidiscrimination acts."
Arguably, the protections sought under this resolution are
similar to the protections offered to federal civilian
employees. The provisions of this resolution are also
consistent with the protections offered in California under FEHA
and the Unruh Civil Rights Act (see Background).
Support : American Civil Liberties Union of California; Asian
Americans for Civil Rights and Equality; California Church
IMPACT; California Employment Lawyers Association; California
Faith for Equality; California Immigrant Policy Center;
California National Organization for Women; California Nurses
Association; Coalition for Humane Immigrant Rights of Los
Angeles; Coalition of Welcoming Congregations of the Bay Area;
Equality California; Gay-Straight Alliance Network; HONOR PAC;
Latino Equality Alliance; League of United Latin American
Citizens; Marriage Equality USA; Our Family Coalition;
Out4Immigration; Service Employees International Union
Opposition : None Known
HISTORY
Source : Bienestar Human Services, Inc.
Related Pending Legislation : None Known
Prior Legislation :
AB 887 (Atkins, Ch. 719, Stats. 2011) clarified the definition
of gender to include gender identity and expression under the
Fair Employment and Housing Act and the Unruh Civil Rights Act
as well as other anti-discrimination laws.
HR 20 (Eng, 2009) supported of the federal Employment
Non-Discrimination Act of 2009, by prohibiting employment
discrimination on the basis of sexual orientation or gender
identity, and urged Congress to pass the act and the President
to sign it. That resolution was adopted by the Assembly.
AB 2800 (Laird, Ch. 578, Stats. 2006) made consistent various
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code sections relating to financing, construction, and occupancy
of housing, by cross referencing existing law language providing
that it shall be unlawful to discriminate against or harass any
person because of the race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry, familial
status, source of income, or disability of that person.
AB 1400 (Laird, Ch. 420, Stats. 2005) clarified that marital
status and sexual orientation are among the characteristics that
are protected against discrimination by business establishments
under the Unruh Civil Rights Act.
AB 2900 (Laird, Ch. 788, Stats. 2004) incorporated in various
code provisions that prohibit discrimination in employment on
the basis of specified characteristics, a reference to the bases
enumerated in FEHA.
Prior Vote :
Assembly Floor (Ayes 52, Noes 21)
Assembly Judiciary Committee (Ayes 7, Noes 1)
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