The Commission on the Status of Women is a state agency founded in 1965 to study issues affecting women and to advise the California Legislature and state agencies on inequities in laws, practices, and conditions that affect women. The commission asked the California attorney general to respond to two inquiries regarding the eligibility of gay, lesbian, bisexual, or transgendered veterans to obtain state-funded veteran benefits. The commission estimates there are over 137,000 such veterans residing in California. On December 31, 2009, the attorney general issued an opinion letter that addressed the commission’s concerns.
California Vets Entitled to Benefits Regardless of Sexual Orientation
One of the issues raised by the commission was whether otherwise eligible military veterans who live in California could receive state-funded veteran benefits if they are lesbian, gay, bisexual, or transgendered. The confusion arose from federal legislation passed in 1994 titled Policy Concerning Homosexuality in the Armed Forces, more widely known as the “Don’t Ask Don’t Tell Policy.” Under that policy, members of the armed forces “shall be separated” from their military service if they have:
- engaged in, attempted to engage in, or solicited another to engage in a homosexual act;
- stated that they are homosexual or bisexual or used words to that effect; or
- married or attempted to marry someone known to be of the same biological sex.
If someone is discharged from the military because of a violation of the policy, the discharge is usually characterized as an “honorable discharge” or “under honorable conditions,” assuming there are no other aggravating circumstances. Given the military’s ability to discharge someone on the basis of sex or sexual orientation, there was concern among gay, lesbian, bisexual, and transgendered veterans about whether they could obtain state-funded veteran benefits once discharged from the military.
The attorney general concluded that despite the federal policy, California can’t deny state-funded veteran benefits to such veterans. The attorney general relied on a section from California’s Government Code that generally states that “no person in the State of California shall, on the basis of their race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability,” be unlawfully discriminated against under any state-funded program, by any state agency, or under any program or activity that receives financial assistance from the state. The term “sex” is defined to include transgendered individuals. Accordingly, the attorney general concluded that based on California’s Government Code, veterans residing in California are entitled to state-funded veteran benefits, regardless of their sexual orientation, if they have been honorably discharged or discharged under honorable conditions from the military.
Domestic Partners Entitled to Benefits
The second issue raised by the commission was whether veterans’ registered domestic partners are entitled to the same benefits that spouses of military veterans receive. To respond to that question, the attorney general analyzed the California Domestic Partner Rights and Responsibilities Act of 2003 (DPRRA) and relevant portions of California’s Family Code. Those sources state that properly registered domestic partners who have filed a Declaration of Domestic Partnership with the secretary of state are entitled to the full range of legal rights, protections, and benefits as those that are extended to spouses.
The attorney general also reviewed the California Superior Court case of Strauss v. Horton. In that recent case, the court held that the passage of Proposition 8 in California created a valid amendment of the California Constitution to define that only a man and a woman can have their relationships designated as “marriage.” Although the court held that the constitution now defines marriage as being between only a man and a woman, it noted that same-sex couples could continue to receive all of the same rights and protections as married couples.
Based on the Strauss opinion as well as the relevant portions of the Family Code and the DPRRA, the attorney general concluded that domestic partners of veterans residing in California are entitled to the same state-funded veteran benefits to which spouses of veterans are otherwise entitled. Attorney General’s Opinion (AG Opn. 08-801, 12/31/09).
Bottom Line
This opinion letter by the attorney general reemphasizes that discrimination against individuals on the basis of their sex and/or sexual orientation is prohibited in California. Although the letter focused on state-funded veteran rights, it does provide guidance for employers as well. You should make employment-related decisions without regard to an employee’s sex, perceived sex, or sexual orientation, including transgender status. Additionally, you should offer the same benefits to properly registered domestic partners as you offer to employees’ spouses. Equal and consistent treatment of employees is the key to avoiding discrimination claims.
Jennifer Barrera is an associate at Carlton DiSante & Freudenberger LLP in Sacramento, California. She specialized in labor and employment litigation for management (including all forms of discrimination and harassment, wrongful discharge and wage and hour litigation), employer advice and counseling. She may be reached at jbarrera@cdflaborlaw.com.