California's Legal Protections for Sexual Orientation
It’s a protected status, making discrimination illegal for any business
on November 28, 2018
Updated on February 8, 2021
There have been a number of high-profile cases recently over individuals denied service by private businesses due to their sexual orientation. Most famously, the Supreme Court was asked to weigh-in on behalf of a Colorado baker that refused to sell wedding cakes to same-sex couples. That case ended with a decision in favor of the baker on procedural grounds.
But when it comes to California, the law is clear: No business may discriminate on the basis of sex or sexual orientation. This law is known as the Unruh Civil Rights Act, and it applies to a wider range of individuals than you might think.
“This law applies to business—including hotels, motels, restaurants, theatres, hospitals, beauty shops, housing, retail establishments,” says C. Veronica Cutler, an employment attorney in California. “Generally speaking, these businesses cannot deny service to someone because of their sexual orientation.”
Sex and Gender Identity
The Unruh Act makes it clear that sex is not just a function of a person's biology. The law defines “sex” more broadly to include “gender.” And gender, in turn, may refer to a person's biological sex, gender identity, or gender expression.
The protection of gender expression is notable because it covers a person's “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” This is separate from gender identity, which refers to how an individual's internal sense of whether they identify as male or female. For example, if a business refused to serve a person who identified as a woman because she “didn't look feminine enough,” that would constitute discrimination on the basis of gender expression. But if the same business refused to serve someone who was assigned the male sex at birth but now identifies as female, that would qualify as discrimination on the basis of gender identity.
Gender identity and gender expression also differ from sexual orientation, which simply refers to whether or not someone is heterosexual, homosexual, or bisexual. As in the wedding cake case mentioned above, a business cannot simply refuse service because the owner or an employee disapproves of the customer's sexual orientation.
But regardless of whether we're talking about sexual orientation, gender identity, or gender expression, they are all equally protected categories according to the Unruh Act. All such persons are “entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (It should be noted the Act also covers race, color, religion, ancestry, national origin, disability, medical condition, genetic information, and marital status.)
“I have had several cases where we alleged violations of the Unruh Civil Rights Act,” says Cutler. “A very important case of mine was where a person was denied dental treatment because he was HIV positive. We alleged violation of Unruh, as well as ADA violations. In another case, a women was denied service at a pharmacy because of her race.”
What Remedies Are Available If a Business Violates the Unruh Act?
If you have been denied service or accommodation by a hotel, restaurant, theater, beauty salon, or any other retail establishment or public agency, you may have a claim for damages under the Unruh Act. The law provides for recovery of certain statutory damages, out-of-pocket expenses, and legal fees, as well as damages for emotional distress. In some cases a court may even award punitive damages. A judge can also issue an injunction
“Under the act, a person who was intentionally discriminated against, can recover three times their actual damages, and $4,000 as a statutory damage,” says Cutler.
It is important to act promptly if you have been the victim of discrimination based on sexual orientation, gender identity, or gender expression, as the Unruh Act has a one-year statute of limitations. If you need more information, you should contact a qualified California civil rights lawyer right away.
“Some states do not have a civil rights act like this, and we are very lucky,” Cutler says. “It helps keep California businesses accountable from intentionally discriminating against someone for their protected class—something they cannot control.”