California Capitol Watch: New Laws Impacting LGBTQ Rights

by Eric Gelber

This installment of California Capitol Watch addresses two bills authored by Senator Scott Wiener that took effect this year: SB 145 (Wiener), related to sex offender registration, and SB 132 (Wiener), impacting rights of transgender individuals in the custody of the Department of Corrections and Rehabilitation (CDCR).

SB 145

What problem/issue does the new law address?

According to the author, “under current law (Penal Code § 261.5), if a young person has voluntary sexual intercourse with a minor then the offense is not automatically registerable if they are within 10 years of age of the minor and the minor is 14 years or older. In these ‘Romeo and Juliet’ cases the court has discretion, based on the facts of the case, to decide whether or not to place the defendant on the sex offender registry. On the other hand, if the sex act performed is oral or anal sex, then the court must always place the defendant on the sex offender registry, regardless of the facts of the case. This disparate treatment of these sex acts originates from laws that criminalized ‘gay’ sex until the 1970s.

“Tragically, … our sex offender registry still mandates that a young person in a consensual relationship who performs these ‘gay’ sex acts must be placed on the sex offender registry and our courts are prohibited from using their discretion to keep them off, even if the couple is close in age and in a healthy relationship. In other words, if a 19-year-old man is convicted of having sex with his 17-year-old boyfriend, he must register as a sex offender. But that may not be the case for a 24-year-old man who gets a 15-year-old girl pregnant — he can avoid sex offender registration if a judge decides it’s unnecessary. This distinction in the law is irrational and discriminatory towards LGBTQ youth as it treats oral and anal sex as a more egregious crime than penile-vaginal sex, with the former mandating sex offender registration, but giving discretion to the courts for the latter.”

What the new law does

SB 145 amends the Sex Offender Registration Act (the Act) to exempt defendants convicted of specified, non-forcible sex offenses involving minors from mandatory registration as a sex offender. Specifically, the Act, as amended:

1) Exempts a person convicted of non-forcible sodomy with a minor, oral copulation with a minor, or sexual penetration with a minor, as specified, from having to automatically register as a sex offender under the Act if the person was not more than ten years older than the minor at the time of the offense, and the conviction is the only one requiring the person to register.

2) Specifies that a person convicted of one of those specified offenses may still be ordered to register in the discretion of the court, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.

Comments

In 1947, California became the first state in the nation to require sex offender registration for persons convicted of specified offenses. At the time, gay sex was illegal and anti-sodomy laws were still on the books. Even though these anti-sodomy laws were overturned in the 1970s, part of the sex offender registry law was never updated and, the author notes, was still destroying the lives of LGBTQ young people.

Sex offender registration is a regulatory means of assisting law enforcement in dealing with the problem of recidivist sex offenders. In a 2010 report, the California Sex Offender Management Board recommended moving to a tiered registration system in which persons would be required to register for ten or twenty years, or life, depending on their nature and characteristics and their risk of reoffending. In response, in 2017, the Legislature passed SB 384 (Wiener) establishing a three-tiered sex offender registry which took effect on January 1, 2021.

As amended by SB 145, the Act now provides that the offenses of non-forcible sodomy, oral copulation, and sexual penetration with a minor would no longer require mandatory sex offender registration unless there is a ten-year gap between the minor and the perpetrator, meaning that sex offender registration would not discriminate on the basis of whether or not a perpetrator engaged in penile/vaginal intercourse, or whether some other kind of sex act was committed. According to the proponents of the bill, this change avoids blatant discrimination against persons who prefer same-sex relationships and would instead allow courts to impose sex offender registration as a matter of discretion for all forms of non-forcible, voluntary sex acts with minors, regardless of whether they are same-sex acts or opposite-sex acts.

The bill was supported by a broad collation of civil liberties organizations (e.g., the ACLU), sexual survivor groups, and law enforcement associations (e.g., the California District Attorneys Association and the California Police Chiefs Association). The Los Angeles County District Attorney, a co-sponsor of SB 145 along with Equality California, noted that the California Supreme Court and Appellate Courts had previously found that mandatory registration violated equal protection laws when sex offender registration requirements differ between the “consensual” acts of oral copulation, sodomy, sexual penetration and sexual intercourse. “This has a direct discriminatory effect for people in same sex relationships. For example, if a 19-year-old male in a romantic relationship with a 17-year-old male were to be prosecuted for sodomy or oral copulation with a person under 18, he would be required to register as a sex offender. However, a 24-year-old male who had vaginal intercourse with a 15-year-old girl and impregnated her is not required to register.”

SB 145 was among the most contentious bills in the last legislative session. Numerous false claims and assumptions were made about its impact. Senator Wiener received myriad abusive messages, including death threats and anti-Semitic slurs. False representations included the contention that the bill would make it so an 18-year-old could rape an 8-year-old. It was the target of conspiracy theorists, including QAnon, claiming the bill “normalizes pedophilia.”

After a 2-year process, SB 145 passed by narrow margins (one vote in the Assembly, two in the Senate) in final Floor votes, and was signed by the Governor in September 2020.

SB 132

What problem/issue does the new law address?

Transgender people incarcerated in California prisons are automatically housed based on their assigned gender at birth unless the individual has undergone sex-reassignment surgery or has been referred to a classification committee after a medical evaluation. According to the author, “SB 132 addresses a very real problem facing incarcerated transgender individuals, namely, transgender people being housed according to their birth-assigned gender, not their gender identity or their perception of safety, resulting in significant risk of violence.

Transgender women housed in male facilities face particular risk of rape and assault. To house incarcerated transgender people in facilities that do not correspond with their gender identity or perception of safety puts these individuals at great risk of physical assault and sexual victimization, and reduces access to programming that creates a successful transition from prison back to their community. The risk of violence often leads to incarcerated transgender people being placed in isolation ‘for their own protection,’ resulting in loss of access to medical and rehabilitation services and leads to increased recidivism rates.”

What the new law does

The new law enacted by SB 132 (“The Transgender Respect, Agency, and Dignity Act”) requires that CDCR house transgender inmates by gender identity—that is, according to their own sense of where they will be safest, as opposed to defaulting to anatomy or dictating placement based on the sex assigned to them at birth.

Specifically, SB 132:

1) Requires CDCR, during initial intake and classification, to, in a private setting, ask each individual entering into the custody of the department to specify the individual’s gender identity whether the individual identifies as transgender, nonbinary, or intersex, and their gender pronoun and honorific;

2) prohibits CDCR from disciplining a person for refusing to answer or not disclosing complete information in response to these questions;

3) prohibits staff, contractors, and volunteers of CDCR from failing to consistently use the gender pronoun and honorific an individual has specified in verbal and written communications with or regarding that individual that involve the use of a pronoun or honorific;

4) requires CDCR, for a person who is transgender, nonbinary, or intersex to only conduct a search of that person according to the search policy for their gender identity or according to the gender designation of the facility where they are housed, based on the individual’s search preference; and

5) requires CDCR to house the person in a correctional facility designated for men or women based on the individual’s preference, except if specific security or management concerns exist regarding the incarcerated person’s housing placement, CDCR may exercise their judgment and override the placement.

Comments

The legislative findings and declarations accompanying SB 132 state that the United States Supreme Court recognized that incarcerated transgender individuals are particularly vulnerable to sexual abuse and sexual harassment and that disregarding the known risks to a transgender woman constitutes deliberate indifference in violation of the federal constitution. Further, in California, a study of the state’s prisons found that the rate of sexual assault for transgender women in those prisons was 13 times higher than for men in the same prisons. Transgender men in California prisons also report high rates of sexual and gender-based violence, harassment, and discrimination.

According to Equality California (a co-sponsor of the bill), “SB 132 is a critical first step toward ending the violence and harassment to which transgender, gender-nonconforming and intersex people are subjected while incarcerated.” Equality California further noted that “[t]ransgender incarcerated individuals face disproportionately high rates of violence, bias, and harassment. In a 2011- 2012 survey, almost 40% of incarcerated transgender individuals reported experiencing sexual victimization while incarcerated, compared to four percent of all incarcerated individuals, and 38% reported being harassed by correctional officers or staff. In California, a study of the state’s prisons designated for men found that the rate of sexual assault for transgender women in those prisons was 13 times higher than for men in the same prisons.”

Supporters asserted that SB 132 will help ensure both the safety of people in CDCR custody by requiring CDCR to house transgender incarcerated individuals according to the transgender person’s sense of health and safety. The bill would also require CDCR staff and contractors to consistently use the gender pronoun and honorific an individual has specified, to foster respect and preserve dignity. In sum, “SB 132 will help ensure both the safety and dignity of transgender people.”

SB 179 (Atkins) was a bill enacted in 2017 that improved the procedures allowing transgender and nonbinary individuals to change their name and/or gender marker to conform to their gender identity in several identity documents including birth certificates and driver’s licenses. The sole organization on record in opposition to SB 132, Feminists in Struggle, argued that “as a result of SB 179, any man may declare himself a woman and change his birth certificate, with no requirements or oversight and in total disregard of biological reality, opening the door for sexual predators of various types, from voyeurs to rapists, to reinvent themselves as female by taking on female names and identities. Add to this the reality that the majority of female prisoners have been molested, raped, sexually assaulted, trafficked, coerced or forced into pornography and/or prostitution, and the potential harm to incarcerated women and girls is greatly increased if SB 132 also passes.” Feminists in Struggle argued that SB 132 poses a grave risk to “actual women,” who comprise 52% of the general population and a growing percentage of the prison population, and therefore to public safety.

SB 132 and SB 145 were two of several LGBTQ+ bills the Governor signed at the end of the last session. These also included:

• SB 932 (Wiener) requiring healthcare providers to report LGBTQ health data, if known, for all reportable communicable diseases.
• SB 1255 (Gonzalez) prohibiting, on and after January 1, 2023, an insurer from declining an application or enrollment request for coverage under a policy or certificate for life insurance or disability income insurance based solely on the results of a positive HIV test.
• AB 1145 (Garcia) providing that for purposes of mandated abuse reporting, “sexual assault” does not include voluntary sodomy, oral copulation, or sexual penetration, if there are no indicators of abuse, unless that conduct is between a person who is 21 years of age or older and a minor who is under 16 years of age.
• AB 2218 (Santiago) establishing the Transgender Wellness and Equity Fund to assist organizations serving people that identify as transgender gender nonconforming, or intersex and help create or fund TGI-specific housing programs and partnerships with hospitals, health care clinics and other medical providers to provide TGI-focused health care.

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