September 2, 2020 at 12:49 pm PDT | by Brody Levesque
California Assembly approves LGBTQ legislation

California State Sen. Scott Wiener (D-San Francisco) authored several LGBT focused bills that are expected to be signed into law this week. (Photo courtesy Harvard Law School Association)

SACRAMENTO – After a legislative session dominated by budget conflicts, COVID-19 interruptions, and the further stresses created by state-wide wildfires, Monday the California Assembly and Senate finished up their work sending several major pieces of legislation to Governor Gavin Newsom for his signature.

For State Senator Scott Wiener and his colleagues from the LGBTQ Legislative Caucus it marked several successes but also included one controversial bill that had been a hold-over from last year’s session.

That bill, SB145, which ended what Wiener and the bill’s co-sponsors the Los Angeles County District Attorney’s Office and Equality California, regarded as “blatant discrimination” against LGBTQ youth regarding California’s sex offender registry, passed both houses of the State Legislature. It now heads to Governor Newsom’s desk.

Currently, for voluntary yet illegal sexual relations between a teenager age 14 to 17 and a partner within 10 years of age, “sexual intercourse” (i.e., vaginal intercourse) does not mandate that the offender to go onto the sex offender registry; rather, the judge has discretion to decide, based on the facts of the case, whether sex offender registration is warranted or unwarranted.

This distinction in the law treats oral and anal sex as “worse” than penile-vaginal sex and is a relic of times when all forms of sexual intercourse other than vaginal intercourse were illegal (anti-sodomy laws). Although California’s anti-sodomy laws were repealed more than 40 years ago, this relic remains.

The law currently disproportionately targets LGBTQ young people by mandating sex offender registration for forms of intercourse in which they engage. For example, if an 18-year-old straight man has penile-vaginal intercourse with his 17-year-old girlfriend, he is guilty of a crime, but he is not automatically required to register as a sex offender; instead, the judge will decide based on the facts of the case whether registration is warranted. By contrast, if an 18 year old gay man has sex with his 17 year old boyfriend, then the judge must place him on the sex offender registry, no matter what the circumstances.

Placing a young person on the sex offender registry can destroy their life. Under longstanding California law, someone placed on the sex offender registry — even for a minor offense like voluntary sex with a partner — has to remain on the registry for life.

Under a change in the law (SB 384, 2017, which was also authored by Senator Wiener) that will take effect January 1, 2021, someone convicted of a lesser sex crime will be able to petition to be removed from the registry after 10 years.

SB 145 does not legalize any kind of sex with a minor and does not change the potential sentence for having sex with an underage person. Rather, the bill simply gives judges the ability to evaluate whether or not to require registration as a sex offender. SB 145 simply extends that same discretion to other forms of intercourse. A judge will maintain the authority to place someone on the registry if the behavior at issue was predatory or otherwise egregious. This change will treat straight and LGBTQ youth equally, end the discrimination against LGBTQ people, and ensure that California stops stigmatizing specific sexual acts.

“We must stop criminalizing LGBTQ young people. There is no logical reason to treat different sex acts differently, and that distinction only exists under California due to egregious legally sanctioned homophobia from the past,” Wiener said. “I am hopeful that Governor Newsom, as a longtime ally to our community, will sign SB 145 into law,” he added.

Assemblywoman Lorena Gonzalez (D-San Diego), chair of the powerful Assembly Appropriations Committee, had held the legislation over during the last session to address what she defined as concerns she had with the bill.

Equality California, a lead backer of the bill along with other advocacy groups, were angered that Gonzalez seemed to substitute her own judgment over that of law enforcement and LGBTQ and allied civil rights groups. Last year her maneuvering was championed and cheered on by anti-LGBTQ Christian Pro Family groups. “A California bill that could have prevented homosexuals from having to register as sex offenders for having sex with consenting minors has been blocked,” Christian Action Network reported Sept. 3, 2019.

The ensuing battle over the delay led to Wiener being subjected to severe online harassment, including anti-Semitic slurs coupled with several death threats, that allegedly came from adherents of QAnon conspiracy theories.

“The passing of SB 145 guarantees equal and fair application of California’s sex offender registration law regardless of sexual orientation,” said Los Angeles Deputy District Attorney Bradley McCartt. “Ordering someone onto the sex offender registry carries lifelong consequences. Allowing judges and prosecutors to evaluate cases involving voluntary sex acts between young people on an individual basis will ensure justice for all Californians”

Another crucial bill SB 132, also passed the state legislature and will now move onto Newsom’s desk for final approval. SB 132 requires that incarcerated transgender, nonbinary, and intersex individuals in the custody of the Department of Corrections and Rehabilitation (CDCR) be classified by their gender identity and housed based on their stated health and safety needs (absent specific security or management concerns).

Currently, CDCR houses offenders based on their assigned sex at birth. This leaves many trans individuals housed in facilities that are not safe for them and do not affirm their gender.

Transgender individuals, particularly transgender women, are at much greater risk for sexual victimization and other forms of assault or harassment in correctional facilities, especially when housed in facilities not consistent with their gender identity. This often leads to them being removed from the general population and placed in limited housing access like solitary confinement, which provides limited or no access to services.

“This bill is a necessary and long overdue harm reduction measure that will allow our trans family to seek safer situations while incarcerated,” Shawn Meerkamper, senior staff attorney at Transgender Law Center said. “As our movements work toward defunding the police and abolishing prisons, California is showing that our governments can and must also take immediate intermediary steps to increase agency and prevent some of the worst violence our incarcerated neighbors suffer.”

Also headed to the Governor’s desk for signature is SB 1255 authored by Senator Lena Gonzalez (D- Long Beach) and the Senate Committee on Insurance. The measure, also known as The Equal Insurance HIV Act, now. Once signed into law, SB1255 would end the unjust practice of insurance companies discriminating against HIV-positive individuals.

“I am very grateful for the support of my Senate and Assembly colleagues on this critical legislation. I must especially thank Senate Committee on Insurance Chair, Susan Rubio, for allowing me to continue with this policy under their Committee’s omnibus bill. I am also incredibly proud of the work and support of California Insurance Commissioner Ricardo Lara and Equality California as sponsors of this important piece of legislation,” said Gonzalez. “This is a huge step to ensure that Californians living with HIV and their families have equal access to life and disability income insurance coverage.”

A co-sponsor, California’s Insurance Commissioner Ricardo Lara, noted: “With HIV-positive individuals living longer, healthier lives than before, we need to end discrimination when it comes to accessing life and disability income insurance to protect themselves and their loved ones. I thank Senator Lena Gonzalez for authoring SB 1255, which will finally give the same insurance rights to people living with HIV that others have.”

“No one should be denied the security of life or disability income insurance because of their HIV status,” Equality California Executive Director Rick Zbur said. “Thanks to modern medicine, people living with HIV lead happy, healthy lives — it’s time for our laws to keep up with the science.”

SB 932 legislation mandating that California collect sexual orientation and gender identity (SOGI) data for all communicable diseases passed the Assembly by a vote of 63-0 and passed the Senate on concurrence by a vote of 39-0. It will now head to Newsom’s desk for final approval. It will be the first law in the nation to require healthcare providers collect SOGI data for all reportable communicable diseases.

Senator Wiener authored SB 932 in early May in response to the COVID-19 pandemic, given that California was collecting data on race, age, and sex with regards to cases of COVID-19, but not sexual orientation and gender identity (SOGI) data. The bill was then amended to expand SOGI data collection to all reportable communicable diseases. Because rates of respiratory issues (from smoking), HIV/AIDS, cancer, and homelessness are higher in the LGBTQ community, LGBTQ people are likely experiencing greater health impacts from COVID-19 and other communicable diseases. Additionally, LGBTQ people are more likely to work in the service industry and in front-line jobs.

In July, the Governor’s office announced it would begin collecting SOGI data for COVID-19 and for all reportable communicable diseases. Because the LGBTQ community has historically been overlooked by the nation’s public health infrastructure, SB 932 will codify this policy into law. It will help LGBTQ people get the health resources and support they need.

“We are now one step closer to SB 932 becoming the first law in the United States to require healthcare providers to collect sexual orientation and gender identity data,” said Wiener. “The Assembly’s unanimous support for this legislation demonstrates just how deep the support for LGBTQ health justice is in California. We’ve come a long way since the 1980s and 1990s, during which LGBTQ people were ignored and marginalized while facing the HIV/AIDS crisis. But we have a long way to go before the LGBTQ community is fully supported and cared for by our health infrastructure. SB 932 would be a groundbreaking law to help get us there.”

Also headed to Newsom’s desk is AB 2218, The Transgender Wellness and Equity Fund. This bill would establish the Transgender Wellness and Equity Fund, under the administration of the Office of Health Equity in the State Department of Public Health for the purpose of funding grants, upon appropriation by the Legislature, to organizations serving people that identify as transgender, gender nonconforming, or intersex (TGI), to create or fund TGI-specific housing programs and partnerships with hospitals, health care clinics, and other medical providers to provide TGI-focused health care, as defined, and related education programs for health care providers.

The existing law establishes methods for aligning state resources, decision making, and programs to accomplish certain goals related to health equity and protecting vulnerable communities. It also requires the Office of Health Equity in the State Department of Public Health to develop department-wide plans to close the gaps in health status and access to care among the state’s diverse racial and ethnic communities, women, persons with disabilities, and the lesbian, gay, bisexual, transgender, queer, and questioning communities, as specified.

“AB 2218 is landmark legislation that will ensure that trans, gender non-conforming and intersex Californians receive the healthcare they need,” Wiener told the Los Angeles Blade Monday. “We are living in the worst health crises of our time and TGI people deserve equal access to healthcare. Governor Newsom is a strong ally to the LGBTQ community so I am hopeful he will sign it into law.”

The Los Angeles Times noted Monday that lawmakers sent Newsom a bill that would require greater diversity on corporate boards in the state, saying the shortage of people of color on the panels is a hurdle to racial justice. The Assembly approved a measure that would require publicly held corporations headquartered in California to have at least one director from an underrepresented community by the close of 2021.

Lawmakers also approved emergency legislation to extend protections against evictions by five months for Californians facing financial hardship because of the COVID-19 pandemic. The measure was sent to Gov. Gavin Newsom, who said he would sign it.

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