Monday, June 22, 2009

Major Civil Rights Victory Largely Ignored

Despite Prop. 8, Gays Still a “Protected Class” in California


Copyright © 2009 by Leo E. Laurence • All rights reserved

Lost in the dark cloud of recent community anger that erupted after the state Supreme Court both (1) upheld Proposition 8 and (2) upheld existing Gay marriages, a major legal development occurred that is largely being ignored.

Gays, Lesbians and Bisexuals are now a “protected class” in the law.

“Protected Class”

Historically, the phrase “protected class” has been legal language to refer to a person’s race, re-ligion, national origin, etc. Gays, Lesbians and Bisexuals were not included … until now, and at least in California.

Back in May 2008, when the state Supreme Court legalized same-sex marriages, it also radically improved Gay civil rights by declaring, for the first time, that sexual orientation is now a “protected class.”

While the state’s high court on May 26 reversed itself on the issue of Gay marriages, it specifically and repeatedly affirmed “the general principle that sexual orientation constitutes a suspect classifi-cation (a.k.a., a “protected class”).

Here’s what this major victory means.

When an appellate court examines a statute to decide whether or not it is discriminatory, there are two very different standards that can be applied: one is the “rational basis” test, the other is the much tougher “strict scrutiny” standard that must be applied to any member of a “protected class” (race, gender, etc.).

While this may sound like a bunch of legal mumbo-jumbo, it is extremely important because of the special protections afforded members of protected classes.

“Under the strict scrutiny standard,” the California Supreme Court says, “unlike the rational-basis standard, in order to demonstrate the constitutional validity of a challenged statutory classification the state must establish (1) that the state interest intended to be served by the differential treatment not only is a constitutionally legitimate interest, but is a compelling state interest, and (2) that the differential treatment not only is reasonably related to but is necessary, to serve that compelling state interest,” the court said in its May 2008 decision. This was not changed by the recent decision upholding Proposition 8.

So whenever you see that magic phrase that person’s race, religion, etc. is protected by any gov-ernment agency in California; that phrase now includes “sexual orientation.”

In terms of the law, that is extremely important because it applies to all laws affecting Gays, Lesbians and Bisexuals, not just their marriage rights.

The inclusion of Gays, Lesbians and Bisexuals into the very special, legal category of a “protected class” remains dramatically new law in California.

City College Application

For example, when I enrolled at City College for the spring semester and unexpected encountered homophobia in the journalism class (which produces the campus newspaper, the City Times), I filed a 10-page complaint with the San Diego Community College District.

The college, in collusion with the district, threw the book at me in disciplinary proceedings and argued that, as a Gay man, I was not a member of a “protected class.” The best way to discourage other Gay students/faculty/staff from reporting unlawful homophobia on campus was to come down very hard on me.

Apparently, the district’s Discrimination Officer, Shawn Larry, had not read the state Supreme Court’s decisions because he argued that I was not a member of a “protected class.” Wrong!

My case at City is now on appeal before the district’s board of trustees.

But that demonstrates how often the status of being a member of a “protected class’ can be im-portant to Gays.

While all the recent angry shouting of protest has focused on the high court’s decision killing future Gay marriages, the community has largely ignored the extremely important basic change in Gay civil rights that remains solid: adding Gays, Lesbians and Bisexuals to the list of those who are members of protected classes, including race, religion and gender.

This change in state law in California is almost as important to the Gay civil-rights movement, as the U.S. Supreme Court’s decision in Brown v. Board of Education that eliminated segregation in our public schools was to the African-American community.

Contact Leo E. Laurence at (619) 757-4909 or at