Enforcing Legal Gender Equality is a Vital Prerequisite to Protecting the Rights of Transgender Individuals - Part 2

Public Accommodations Required to Provide Equal Services Regardless of Gender Protect Transgender Individuals

The Unruh Civil Rights Act in California¹ provides in pertinent part “All persons within the jurisdiction of this state are free and equal, and no matter what their sex . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”²

“‘Sex’ . . . includes, but is not limited to, a person’s gender. ‘Gender’ means sex, and includes a person’s gender identity and gender expression. ‘Gender expression means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”³

The Unruh Civil Rights Act has a simple purpose, “community services regardless of their source are to be provided in accordance with the legislative mandate of equal treatment for all.”⁴ It requires that business customers receive equal treatment in all aspects of the business.⁵

The California courts strongly enforce the Unruh Civil Rights Act.⁶ Businesses are not free to discriminate “so long as these establishments agree to provide equal treatment to those customers knowledgeable and assertive enough to demand it.”⁷ Even private non-profit social clubs, like the Rotary Club, that are generally open to members of the public cannot exclude potential members solely on the basis of sex.⁸ A country club, that operates as business, cannot exclude people from being members solely because of their sex or gender.⁹

In fact, court decisions have played a role in shaping the culture of California.

For example, ever wondered why we have “Boys and Girls Clubs”? They used to be just “Boys Clubs” a long time ago. Until the California Supreme Court held that they could not exclude girls from the clubs.¹⁰

Ever wondered why you’re never required to wear a tie at a fancy restaurant in California? Restaurants used to be allowed to require men to wear ties in order to be served. However, the California Court of Appeals held that this was impermissible sex discrimination so long as the restaurants did not also require women to wear ties.¹¹

Did you know that Chippendale’s used to have performances that men couldn’t attend? Today though, they have no such sex or gender restrictions. Why? The California Court of Appeals held that it was illegal sex discrimination.¹²

Can a restaurant have a policy of deciding whether to allow couples in semi-private booths premised upon the sex of the customer? No.¹³

Why is it that you never see a business establishment in California offering any kind of “Ladies’ Night” or “Ladies Day” and that when they do, they usually quickly cease? Because the California Supreme Court unanimously held that gender discrimination, even when it does not result in exclusion, is strictly illegal.¹⁴ Thus, in California, a business establishment cannot treat men or women differently in public accommodations, either negatively OR even positively, because of a customer’s sex or gender.¹⁵

Thus, can a private social club open to the public restrict its membership only to men or to women? No.¹⁶

Can a supper club charge men more for a ticket of admission than it charges women? No.¹⁷

Can a fitness center or day spa be for men or women only? No.

Can a fitness center have certain times of day or certain sections reserved to men or women only? No.¹⁸

Does it matter whether one is truly a woman or truly a man for the purposes of pricing? No. The Gender Tax Repeal Act of 1995 prohibits businesses from providing products and services at different prices based solely upon gender.¹⁹

Why is this so important for transgender rights?

No one can control how the outside world will perceive them. This is especially true for any person who decides to transition to live as the gender opposite their biological sex at birth. Moreover, whether one defines gender as biological, social, or some combination is always going to be a subject of personal debate, and reasonable minds are going to differ.

Trying to maintain gender segregation in public accommodations while insisting on acceptance of someone being of a gender they claim to be that does not match their biological gender is ultimately rife with pitfalls and controversy. If anything, it’s dehumanizing to transgender people, reminding others of their biological differences and reinforcing their biological differences.

When the law is strongly enforced, however, to remove gender segregation and require equal treatment regardless of gender, how one is perceived and how one views the issue of gender ultimately becomes irrelevant. People must be treated equally regardless of their gender anyway, so however a person feels about another person’s gender, it has no meaning in every day life.

There’s no debate over whether a transwoman should get Ladies Day promotions when there are no Ladies Day promotions that can be given out. There’s no debate over whether a transman is really a man entitled to join a men’s only business club when the business club cannot exclude women from the club. A child who claims to be gender fluid or gender non-binary cannot be rejected from the local youth club when the local youth club is prohibited from excluding that child on the basis of their biological sex, male or female.

Ultimately, only by removing the traditional gender barriers in places of public accommodation between men and women can a society truly be free for all people regardless of gender identity.

1. 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.