Thursday, December 27, 2007

Religious Conservatives Continue to Challenge California Antidiscrimination Law

California's newly-enacted Student Civil Rights Act (a/k/a "SB 777") is under attack by conservative, religious organizations, who have not only initiated a referendum that would repeal the law, but are now also challenging the law in court.

SB 777 amended the antidiscrimination provisions of the state education code by adding sexual orientation and gender identity. Many consider this legislation to be a mere clarification, since other, generally applicable antidiscrimination laws already contain those protections. However, as we've noted before, opponents of the new law are arguing that the new law will mean all kinds of changes to the education policies, facilities, and curriculum that will infringe the rights of Christian kids to endure a publicly-funded education without coming into contact with the reality that some people are gay and/or don't adhere to rigid gender stereotypes.

In November, the opposition to SB 777 entered the legal arena when Alliance Defense Fund and Advocates for Faith and Freedom filed a lawsuit in federal court, challenging the law as a violation of the due process rights protected in the federal and California constitutions. Specifically, they argue that by abandoning the biological category of sex in favor a social category of gender, the law imposes a vague nondiscrimination mandate, since educators can't be expected to "read the minds of individuals to determine the individual’s self-defined sexual identity so as not to inadvertently discriminate against an individual based upon their self-defined sex."

Two gay rights groups, Equality California and the Gay-Straight Alliance Network, recently filed motions to intervene in the lawsuit (which would allow them to make arguments in support of the law, even though they are not the named defendant). The groups are represented by NCLR, Lambda Legal, the Transgender Law Center, and two private firms. According to Equality California's executive director Geoff Kors, the intervenors' position is that the law is not vague, it simply clarifies what the courts have already determined: that schools can be liable for discriminating against students, including gay, lesbian, and gender-nonconforming students. I expect they will also point out, in response to the gender = vague = chaos line of reasoning that plenty of states have similarly constructed antidiscrimination law, and that federal courts are increasingly interpreting sex discrimination to include gender and in some cases, sexual orientation, and schools have not experienced the parade of horribles that ADF and AFF apparently fear.