Enforcing Legal Gender Equality is a Vital Prerequisite to Protecting the Rights of Transgender Individuals - Part 1
California Law ensures an open society by not allowing biological sex to be used as a reason to discriminate
In many of the current TERF-TRA wars, people often argue over the definition of a woman as though one’s gender is legally dispositive for how one is treated by the government and in public accommodations. If your sex matters for legal purposes, how you define sex and gender (whether it’s biological, social, or some combination) becomes vitally important.
A few examples:
A protest in the United Kingdom over whether transwomen should be allowed to swim in a women’s only local swimming pond.1
Controversy over London’s exclusive private men’s only Savile Club allowing a transgender woman to join.2
A dispute in Canada as to whether a transwoman could join an all women’s fitness center.3
A dispute over whether a transwoman, comedienne Eddie Izzard, should be allowed onto the United Kingdom’s Labour Party all-women’s shortlist for Parliamentary candidates.4
An eruption of anger from the TERFs over a man being hired to be the first Chief Period Dignity Officer in a local Scottish town.5 After the public outcry, the man was fired from the job.6
In France, the Mayor of Paris was fined for having too many women in top level executive positions in her mayoral administration because of a gender equity law required that no less than 40% of all top level positions had to be of the opposite gender.7 While not about transgender issues, the implication is clear, that how one is defined by gender is dispositive as to whether the Mayor broke the law by hiring too many women.
Arguments have arisen as to whether transwomen should receive domestic violence assistance reserved for women.8
But these controversies, which all arise over what the proper definition of a woman and a man are, are a moot point in California. Our state constitution and state laws strictly prohibit discrimination on the basis of sex or gender.
Whether a transwoman is really a woman or whether a transman is really a man are nothing more than legally irrelevant political talking points. In all the above-mentioned cases, government entities and private businesses in California could not engage in gender based discrimination in first place.
This Substack Post is split into three parts.9 Part 1 will evaluate governmental discrimination on the basis of sex or gender. Part 2 will evaluate discrimination on the basis of sex or gender in public accommodations by privately owned businesses and clubs. Part 3 will evaluate when it is permissible to draw a distinction based upon sex or gender notwithstanding gender equality under the law.
Equal Protection Under Article I, Section 7 of the California Constitution
Article I, Section 7 of the California Constitution, the Equal Protection Clause, provides in pertinent part “A person may not be . . . denied equal protection of the laws.”10 Article I, Section 7 is the state constitutional analog to the Fourteenth Amendment Equal Protection Clause, which provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”.11 For a very long time, the Fourteenth Amendment had no application to sex discrimination.12
Among other things, women could be legally prohibited from working as bartenders, denied law licenses, excluded from serving on juries, and even kept off of municipal golf courses.13 The Fourteenth Amendment’s lack of application to gender discrimination is what prompted the enactment of the Nineteenth Amendment.14 As United States Supreme Court Justice Bradley wrote, “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”15
The United States Supreme Court’s jurisprudence on the Fourteenth Amendment has fortunately changed.16 Due to popular culture, many are now aware that former Supreme Court Justice Ruth Bader Ginsburg led those efforts in the 1970s, getting the United States Supreme Court to change its method of evaluation of sex and gender discrimination.17
But even before the United States Supreme Court changed its jurisprudence, the California Supreme Court heralded that change in 1971. That is when it unanimously held that under California’s Equal Protection clause, sex discrimination is treated the same as race discrimination under the Fourteenth Amendment of the United States Constitution.18
That is, laws that discriminate on the basis of sex or gender, like those that discriminate on the basis of race, are presumptively unconstitutional and are unlikely to be upheld except under extremely narrow circumstances.19 Group stereotyping, administrative convenience, and simple numbers analysis do not allow for laws that discriminate on the basis of sex any more than they justify laws that discriminate on the basis of race.20
So can a public facility operated by the government like a swimming pool be reserved for men or women only? No.21
Can government run domestic violence services be offered only to women? No.22
Could a political party have all women’s short-lists for major elected office where only a woman can vote? No.23 Racial and ethnic discrimination in voting is absolutely prohibited under the Fourteenth and Fifteenth Amendments.24 This rule applies not only to general elections but extends to political party primaries as well.25 Just like restricting the right to vote on account of race, restricting the right to vote on the basis of sex is strictly prohibited.26 And the right to candidacy is part and parcel of the right to vote, as voters are deprived the right to vote when they cannot elect a candidate of their choice.27 Accordingly, an all-women’s political party nomination shortlist where only a woman could be nominated would violate both the California and United States Constitutions.28
In all the above situations, the requirement of gender equality under the law protects transgender individuals. Because there is equality under the law regardless of gender, one’s gender identity ultimately becomes irrelevant. As the government cannot discriminate against you on the basis of your sex or gender in the first place, you are free to be your true self without the government treating you differently.
Gender-Specific Requirements for Government Jobs and Promotions
Under Article I, Section 7, preventing a man from serving as a government’s Chief Period Dignity Officer or enacting a maximum percentage of men or women to senior government positions would almost certainly be prohibited.29 A law mandating gender percentages in governmental hiring and promotions is presumptively unconstitutional.30 Simply demanding a balance of senior governmental executives on the basis of gender for its own sake “is patently unconstitutional.”31
But if there is any question of the constitutionality of such actions under Article I, Section 7, two additional provisions of the California Constitution absolutely prohibit the gender discriminatory actions of the British and French.
Article I, Section 8 of the California Constitution, which dates back to 1879,32 provides “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex . . .”33 The law is clear.34 This provision strictly prohibits the government from excluding a man from becoming Chief Period Dignity Officer solely on the basis of his sex.35
Article I, Section 31 of the California Constitution provides “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of . . . sex . . . in the operation of . . . public employment and contracting.”36 The constitutional provision applies to every single state and local governmental entity in California.37
This constitutional provision does not allow for even targeted outreach or targeted recruitment on the basis of gender, let alone actual sex based preferences.38 It would prohibit any laws attempting to limit the number of women or limit the number of men who could serve in executive positions in a governmental administration.39 Even non-rigid hiring preferences like participation goals on the basis of gender are prohibited.40
This has practical consequences. When newly appointed San Francisco District Attorney Brooke Jenkins appointed an all-female executive team, no French-style law could stop her from hiring the best qualified applicants for the job and force her to hire less qualified men to satisfy an arbitrary number imposed by the government.41
The law also is very clear in preventing the government from attempting to come up with reasons to discriminate on the basis of sex as well. Under Article I, Section 31, it does not matter whether the government can prove a compelling governmental interest like it can under Article I, Section 7, sex discrimination by the government is automatically unconstitutional.42
Can a man be fired from his job as a Chief Period Dignity Officer because he is a man? No. A woman could not even be given preferences that favor her for being a woman. Can laws mandate an upper cap on the number of women in senior governmental positions? No.
There is no woman’s card (or man’s card) in California, where a transgender person can be accused of attempting to skirt rules or give themselves undeserved benefits on account of their true gender. That’s in large part because such benefits are prohibited to begin with. But this has a broader implication for trans rights. A person’s gender does not advantage or disadvantage them in the employment process. It has been categorically removed as a determinative factor.
What is the consequence for transgender rights as a result of these strict gender equality laws?
Transgender people are free to be who they are, to choose which gender they properly feel without consequence for it. The arguments about a person should properly identify and the endless arguments about nomenclature and biology versus social constructs are removed, essentially moot. Ultimately, it remains up to the individual to choose their own definition of womanhood and manhood, not the prerogative of the government.
https://www.reuters.com/article/us-britain-club-lgbt/elite-london-gentlemans-club-bends-its-rules-to-accept-a-transgender-woman-idUSKBN1D620X
https://www.theguardian.com/culture/2022/oct/27/eddie-izzard-rules-out-appearing-on-all-women-labour-mp-shortlist
https://tpride.org/documents/transwomenDVshelters.pdf
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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