Gender and the Law

This guide contains materials dealing with sex and gender discrimination, sex stereotyping, and state/federal laws pertaining to gender or sex.

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Employment Non-Discrimination in California

The State of California does provide protection against job discrimination based on sexual orientation.  Provisions in the state code include protections based on both sexual orientation and gender identity. 

These provisions are found in the California Government Code § 12920, 12940, and 12949 which reads, in part:

"It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation."

Relationship Recognition Under Federal Law

The Defense of Marriage Act was passed by Congress in 1996 and is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738c which reads:

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife." (1 U.S.C. § 7)

This law has two effects:

  • That no state is forced to recognize a same-sex marriage even if the marriage was recognized in another state.
  • The Federal Government may not recognize same-sex, or polygamous, marriages for any purpose, even if recognized by a state

Section 3 of DOMA, which defined marriage under federal law, was overturned by the U.S. Supreme Court in June of 2013.  The Court held that DOMA was unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

Relationship Recognition in California

The State of California once restricted LGBTIQ couples from acquiring equal marriage rights via state statute.  This restriction was found in the California Family Code § 308.5 which reads:

"Only marriage between a man and woman is valid or recognized in the state of California."

This code section restricted the ability of same-sex couples to acquire a marriage license, and also prevented the state from recognizing marriages between same-sex couples performed in other states (or foreign countries).  It resulted from a ballot intiative passed on March 7, 2000 known as the "Knight Initiative".

In 2005 California extended domestic partnership rights and responsibilities to same-sex couples.  This law gives nearly all rights and responsibilities afforded to spouses under state law including complete inheritance rights, community property, joint responsibility for debt, and the right to request support from each other upon dissolution of the relationship.

The domestic partnership provision is found in the California Family Code § 297-297.5 which reads, in part:

"Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

On May 15, 2008 the California Supreme Court issued its ruling on In re marriage cases.  The court found that restricting marriage to opposite-sex couples violated the state's equal protection clause and struck down sections 308.5 and 300 in the California Family Code.  It also found that based on the Perez v. Sharp case, marriage does constitute a fundamental right that cannot be denied to same-gender families.  The case dates back to 2004, when San Francisco began issues marrage licenses to same-gender families.

Notable quotes from the majority decision:

[U]nder this state's Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process.

[S]trict scrutiny (...) is applicable here because (1) the statutes in question properly must be understood as classifying or discriminating on the basis of sexual orientation, a characteristic that we conclude represents — like gender, race, and religion — a constitutionally suspect basis upon which to impose differential treatment, and (2) the differential treatment at issue impinges upon a same-sex couple's fundamental interest in having their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple.

[T]he exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples.

On November 4, 2008 a constitutional amendment was passed, by voter initiative, which eliminated marriage equality for LBGT families.  The intiative, called Prop. 8, added the following text into the California Constitution:

Only marriage between a man and a woman is valid or recognized in California.

A number of lawsuits were filed against the state seeking to prevent this amendment from taking effect.  Many of the arguments proposed by these lawsuits were based upon equal protection grounds, the fundamental liberty interest, and that it acts as a revision, rather than amendment, to the constitution.  

A federal challenge to Prop. 8 was successful at the trial level. Perry v. Schwarzenegger was heard by the federal court for the Northern District of California.  Judge Vaughn Walked ruled that Prop. 8 violated federal equal protection and due process requirements.

The Ninth Circuit appellate court later heard the case and also found that is violated the 14th amendment's assurance of equal protection and due process.
The state of California chose not to appeal this case.  The proponents of Prop. 8 intervened and argued that they had standing to bring about an appeal.  The United States Supreme Court ruled that only the state has standing when defending a challenge to a state statute or state constitutional amendment and vacated the ruling of the Ninth Circuit.

Important federal cases

Bowers v. Hardwick, 478 U.S. 186 (1986) (W|L) 
Practicing homosexual brought action challenging constitutionality of Georgia sodomy statute. The United States District Court for the Northern District of Georgia, Robert H. Hall, J., granted defendants' motion to dismiss for failure to state claim upon which relief could be granted, and plaintiff appealed. The Court of Appeals, 760 F.2d 1202, reversed and remanded. After rehearing was denied, 765 F.2d 1123, defendants petitioned for certiorari. The Supreme Court, Justice White, held that Georgia's sodomy statute did not violate the fundamental rights of homosexuals.

Lawrence v. Texas, 539 U.S. 558 (2003) (W|L)
Defendants were convicted in the County Criminal Court at Law No. 10, Harris County, Sherman A. Ross, J., of engaging in homosexual conduct. They appealed. On rehearing en banc, the Texas Court of Appeals, Hudson, J., 41 S.W.3d 349, affirmed. Certiorari was granted. The Supreme Court, Justice Kennedy, overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and held that Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in privacy of home.

Romers v. Evans, 517 U.S. 620 (1996) (W|L)
Homosexual persons, municipalities, and others brought action against governor, state attorney general, and state, challenging validity of amendment to Colorado Constitution that prohibited all legislative, executive, or judicial action designed to protect homosexual persons from discrimination. The District Court, City and County of Denver, H. Jeffrey Bayless, J., 1993 WL 518586, entered permanent injunction enjoining enforcement of amendment, and defendants appealed. The Colorado Supreme Court affirmed, 882 P.2d 1335, and certiorari was granted. The Supreme Court, Justice Kennedy, held that amendment violated equal protection clause.

Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (2010) (W|L)
Same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts, brought action alleging that, due to operation of Defense of Marriage Act (DOMA), they were denied certain federal marriage-based benefits that were available to similarly-situated heterosexual couples, in violation of equal protection principles embodied in Fifth Amendment's Due Process Clause. Federal officials moved to dismiss, and plaintiffs moved for summary judgment.

Massachusetts v. U.S. Dept. of Health and Human Services, 698 F.Supp.2d. 234 (2010) (W|L)
Commonwealth of Massachusetts brought action challenging constitutionality of federal Defense of Marriage Act (DOMA). United States moved to dismiss, and Commonwealth moved for summary judgment.  Court held that DOMA exceeded Congress's power under Spending Clause and violated the Tenth Amendment.

Golinski v. Office of Personnel Management, 824 F.Supp.2d 968 (2012) (W|L)
Federal employee, who was a lesbian married to someone of the same sex, brought action against the Office of Personnel Management (OPM), seeking a determination that Defense of Marriage Act (DOMA), as applied to her, violated the Constitution by refusing to recognize lawful marriages for the purposes of application of the laws governing benefits for federal employees. After the Bipartisan Legal Advisory Group's (BLAG) motion to intervene was granted, BLAG and OPM moved to dismiss, and employee moved for summary judgment.

United States v. Windsor (2013) (W|L)
Section 3 of Defense of Marriage Act—which defines “marriage” as only between “one man and one woman,” which defines “spouse” only as “person of the opposite sex who is a husband or a wife,” and which operates to deny marital exemption to federal estate tax and other benefits of federal law to same-sex married couples—violates basic due process and equal protection principles applicable to federal government, where, among other things, DOMA's avowed purpose and practical effect are to impose disadvantage, separate status, and stigma upon all who enter into same-sex marriages made lawful by unequestioned authority of the states.

Heafey Law Library Research Team