Sacramento v. Local Elected School Boards - Part 2

The key Constitutional Issue in the Local California School Curriculum and Policy Fights That Everyone Forgets - Equal Treatment Under the Law

In the battles over LGBTQIA related curriculum and issues in California public schools, questions have arisen over who is in control of decisions on public education.¹ As I wrote in a previous article, the California Constitution provides that it is ultimately the State of California that possesses the final authority to control what is taught in local schools, not the elected governing boards of local school districts.²

However, there is another underlying constitutional issue, often overlooked in these public education disputes, that needs to be addressed.

When it comes to LGBTQIA issues in the operation of public education in California, what is the legal framework that must govern policies implemented by both the state and the governing boards of local school districts?

Regardless of who makes decisions in public education, the Equal Rights Amendment of the California Constitution strictly requires that those decisions be made with equal treatment given regardless of sexual orientation and gender identity.

The Equal Rights Amendment of the California Constitution provides that “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”³ “State” includes “any . . . school district”.⁴

The California Supreme Court has held that granting preferential treatment “means giving ‘preference,’ which is ‘a giving of priority or advantage to one person . . . over others.’”⁵ Under the Equal Rights Amendment, “one may not assign any burden or benefit improperly in an attempt to assign some other burden or benefit properly. Similarly, one may not afford treatment that in any respect is unequal in an attempt to afford treatment that in some other respect is equal.”⁶

State law currently prohibits discrimination in education on the basis of sexual orientation, gender identity, and gender expression.⁷ Additionally, under the Equal Protection Clause of the California Constitution, discrimination on the basis of sexual orientation and gender identity are already presumptively unconstitutional.⁸

But the California Equal Rights Amendment provides even more protection than both state law and the Equal Protection Clause. That is because civil rights statutes are not constitutionally required; they can be repealed or even superseded by the State Legislature directing discrimination.⁹ And although a very high burden, the Equal Protection Clause can allow for discrimination if the government can prove the discrimination is narrowly tailored to meet a compelling governmental interest.¹⁰

However, the Equal Rights Amendment prohibits any differential treatment under all circumstances involving the operation of public employment, public education, and public contracting, regardless of any governmental justification.¹¹ This means that any type of program in education, employment, or contracting that would favor or disfavor an individual on the basis of one of the prohibited categories is unconstitutional even if it is not a decisive factor.¹² The operation of public education in California includes all aspects of education.¹³

Now, some may ask. Does the Equal Rights Amendment apply to sexual orientation and gender identity discrimination?

It is a question that no California court has actually had the opportunity to answer. And, at first glance, it might appear that the answer is no.

The Equal Rights Amendment does not expressly specify “sexual orientation” or “gender identity” as prohibited forms of governmental discrimination, both of which are inherently different and distinct from sex discrimination.¹⁴ Admittedly, previous case law in California, interpreting the state’s Equal Protection Clause, has held that challenged sexual orientation discrimination did not constitute sex discrimination.¹⁵ Therefore, one might argue that the Equal Rights Amendment is inapplicable to sexual orientation and gender identity discrimination.¹⁶

However, after the United States Supreme Court’s 2020 decision in Bostock v. Clayton County,¹⁷ the Equal Rights Amendment of the California Constitution almost certainly prohibits sexual orientation and gender identity discrimination.¹⁸ In Bostock, the United States Supreme Court held that Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination and gender identity discrimination because of the statutory language prohibiting discrimination on the basis of sex.¹⁹

Although Bostock might seem at odds with previous California judicial precedent, it is actually in full accord with the California courts, as the United States Supreme Court agreed in Bostock that sexual orientation discrimination and gender identity discrimination are inherently different from sex discrimination.²⁰

The California Supreme Court has held that the purpose of enacting the Equal Rights Amendment into the California Constitution was to incorporate the original understanding of the 1964 Civil Rights Act.²¹ As now interpreted by the United States Supreme Court in Bostock, the original understanding of the 1964 Civil Rights Act prohibits sexual orientation and gender identity discrimination as intentional discrimination on the basis of sex.²²

In Bostock, the Court held as much because in order to discriminate on the basis of sexual orientation or gender identity, one must invariably use a person’s biological sex to discriminate.²³ By using sex as a factor in an employment decision, one violated Title VII whenever one made a hiring decision on the basis of sexual orientation or gender identity.²⁴

Even though sexual orientation discrimination and gender identity discrimination are not the same thing as sex discrimination, one cannot discriminate on the basis of sexual orientation or gender identity without discriminating on the basis of sex.²⁵ Because sex is used as a factor in the decision and sex cannot be used as a factor at all, all discrimination on the basis of sexual orientation and gender identity is illegal.²⁶

The Equal Rights Amendment textually prohibits discrimination “on the basis of . . . sex” in virtually identical language to Title VII of the 1964 Civil Rights Act. Title VII of the 1964 Civil Rights Act prohibits discrimination “because of . . . sex”.²⁷ Under current statutory interpretation, the terms “because of sex” and “on the basis of sex” mean the same thing.²⁸

Neither the Equal Rights Amendment nor Title VII textually prohibit sexist discrimination or sexist policies.²⁹ And neither the Equal Rights Amendment nor Title VII textually prohibit discrimination solely or primarily on the basis of sex.³⁰ Instead, the language “on the basis of sex” in Title VII bars all sex discrimination, not just discrimination that is solely on the basis of sex.³¹

Both the Equal Rights Amendment and Title VII are worded differently than their Equal Protection Clause counterparts.

The Equal Protection Clause of the California Constitution provides that “A person may not be . . . denied equal protection of the laws.”³² The United States Equal Protection Clause provides “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”³³ Both provisions are broad guarantees against discrimination, not specific bans on certain types in all situations.³⁴

Title VII provides “It shall be an unlawful employment practice for an employer—to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . .”.³⁵ The different wording of the Fourteenth Amendment Equal Protection Clause and Title VII result in different legal outcomes.³⁶

By its wording, the Equal Rights Amendment was designed to have a different and far broader effect than the pre-existing Equal Protection Clause.³⁷ In this regard, the California Supreme Court agrees with Bostock, having held that the Equal Rights Amendment bars any consideration of sex as a factor in the operation of public education, public employment, and public contracting.³⁸

The California Supreme Court has held that “cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.”³⁹ “Decisions of the United States Supreme Court, nevertheless, are entitled to respectful consideration and ought to be followed unless persuasive reasons are presented for taking a different course.”⁴⁰

There are no cogent or persuasive reasons to disregard Bostock.⁴¹

First, while the California Constitution provides far more individual rights and protections than the federal Constitution, it does not provide less.⁴² The Biden Justice Department, fully embracing Bostock, has issued a legal memorandum directing that any federal law containing language barring discrimination “on the basis of sex” also prohibits discrimination on the basis of sexual orientation and gender identity.⁴³ It would be highly anomalous to have California law offer less protection for individual rights and against discrimination than a similar federal law does.⁴⁴

Second, the California Supreme Court decisions holding sexual orientation discrimination did not constitute sex discrimination relied partly upon previous federal case law, decided prior to Bostock, that Title VII did not prohibit sexual orientation or gender identity discrimination.⁴⁵ After the decision in Bostock, this is no longer legally accurate.⁴⁶

Third, in enacting the Equal Rights Amendment, California has decided that there are no circumstances in which immutable characteristics that are an accident of birth with no bearing on one’s ability to perform in society - race, sex, national origin, color, and ethnicity - should ever be used in governmental decision making regarding education, employment, and contracting.⁴⁷

Like those explicitly prohibited types of discrimination in the Equal Rights Amendment - race, sex, national origin, color, and ethnicity - sexual orientation and gender identity are both immutable characteristics that are an accident of birth with no bearing on one’s ability to perform in society.⁴⁸ Thus, applying Bostock’s holding does not contradict the purpose of the Equal Rights Amendment, but furthers it.

Fourth, previous California Supreme Court decisions on other California Constitution provisions prohibiting discrimination “because of sex”⁴⁹ have aligned with the United States Supreme Court’s interpretation of “because of sex” in Title VII, prohibiting sexual harassment.⁵⁰ It would make little sense to depart from the United States Supreme Court’s interpretation of Title VII’s prohibition of discrimination on the basis of sex in Bostock while following the Court’s definition in other cases.

Fifth, not adopting Bostock would be a sharp departure from the traditional role of the California Courts being at the frontline of protecting the rights of gay, lesbian, bisexual, and transgender individuals.⁵¹ For that matter, the California Courts have always protected straight and non-transgender individuals from sexual orientation and gender identity discrimination as well.⁵²

When the California Supreme Court previously distinguished discrimination on the basis of sexual orientation as different from discrimination on the basis of sex, the Court did not do so to restrict LGBT rights, it did so as it bravely expanded and protected gay and lesbian rights.⁵³ This stands in stark contrast to the United States Supreme Court and other federal courts, which often ignored or even promoted discrimination against LGBT Americans.⁵⁴

For example, in 1967, the United States Supreme Court approved of the deportation of an immigrant on the sole basis that he was gay, labeling all gay people as “psychopaths”.⁵⁵ In contrast, in 1969, the California Supreme Court ordered the reinstatement of a public school teacher who was fired for being gay after he was outed.⁵⁶

In 1986, the United States Supreme Court held that criminalizing consensual gay sex was constitutional.⁵⁷ As Chief Justice Warren Burger wrote “there is no such thing as a fundamental right to commit homosexual sodomy.”⁵⁸ In 1987, the California Supreme Court unanimously gave the United States Supreme Court the middle finger and rejected that interpretation.⁵⁹

When other state high courts deprived custody of parents just because of their sexual orientation and upheld the constitutionality of laws prohibiting gays and lesbians from adopting children, the United States Supreme Court let those cases stand.⁶⁰ By contrast, when the California Court of Appeals in conservative Orange County reversed a Superior Court order taking away custody of a child from a gay parent in a divorce case solely because of the parent’s sexual orientation , the California Supreme Court let the opinion stand.⁶¹

Some judges change with the times, espousing pro-equality views when it suddenly becomes convenient to do so.⁶² It is far easier for some federal judges to uphold the law when it becomes politically popular.⁶³ But the California courts have advanced LGBT rights, following the law rather than doing what was politically popular or socially acceptable at the time.⁶⁴

The federal courts finally waking up (to some extent) and joining California is a welcome development. Not following Bostock would be an incoherent step backwards, leaving avenues open for sexual orientation and gender identity discrimination that are now foreclosed at the federal level.

Accordingly, in the operation of public education, the Equal Rights Amendment of the California Constitution mandates that public schools cannot make any classification or give any differential treatment on the basis of sexual orientation or gender identity.⁶⁵

Why does this matter in the debates on LGBT students and curriculum in public schools?

Whenever Sacramento enacts a law governing education, the State Board of Education or Superintendent of Public Instruction create a new education standard, or local school boards implement a policy, they all must do so without favor or disfavor on the basis of sexual orientation or gender identity.

Often times, debates on these issues center around the freewheeling demands of activists on both sides. But ultimately, neither the state nor the local school boards can just make policy based on the wish lists of the activist group they most politically align with. Policies must be constitutionally compliant.

Some parents and elected school board members in California demand that LGBT public school teachers closet themselves in the workplace, LGBT students be restricted in identifying themselves, educational courses promote heterosexuality and non-transgenderism, and that school districts enact Ron DeSantis/Margaret Thatcher-style laws that remove any student materials that might reference LGBT people and prohibit all discussion in schools of homosexuality and transgenderism.⁶⁶

When they do so, they are demanding that the public schools discriminate and give preferential treatment on the basis of sexual orientation and gender identity in the operation of public education. Acceding to these demands would require the public schools to discriminate on the basis of sex in the operation of public education.

This, the Equal Rights Amendment of the California Constitution strictly forbids.

Are there any exceptions?

The Equal Rights Amendment does have an exception for those sex-based classifications that are genuinely and reasonably necessary to maintain normal operation of public education.⁶⁷ The bona fide qualification to non-discrimination is “‘an extremely narrow exception’” to the prohibition of discrimination on the basis of sex, not a free-for-all.⁶⁸ It only applies when there is an actual biological sex-based difference that cannot be overcome or adjusted for under any circumstances.⁶⁹

Additionally, the Equal Rights Amendment will yield when the federal constitution supersedes it.⁷⁰ For example, relevant to public education, constitutional parental rights are guaranteed by the federal constitution.⁷¹ If following the Equal Rights Amendment would require a local school district to violate constitutional parental rights, the local school district would then yield to adhere to the requirements of the federal constitution.⁷² However, this is an incredibly narrow exception.⁷³

Sacramento possesses the constitutional authority to dictate educational policy in local school districts though it may delegate that authority to local school districts to set independent educational policy.⁷⁴ However, neither Sacramento nor the local school district may implement programs or require local school districts to act in ways that classify on the basis of sexual orientation or gender identity in violation of the Equal Rights Amendment.⁷⁵

Policies of the school district must treat all students, teachers, staff, and school parents equally without regard to sexual orientation or 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.

2.

3. Cal. Const. Art. I, § 31(a)(emphasis added).

4. Cal. Const. Art. I, § 31(f).