Soapbox

Transparency needed on California boycott of states because of gender discrimination

California law prohibits state agencies and universities from using taxpayer dollars for travel to eight states with laws deemed discriminatory toward the LGBT community. These laws have included "bathroom bills" that require people to use bathrooms that correspond with their gender at birth.
California law prohibits state agencies and universities from using taxpayer dollars for travel to eight states with laws deemed discriminatory toward the LGBT community. These laws have included "bathroom bills" that require people to use bathrooms that correspond with their gender at birth. Associated Press file

Attorney General Xavier Becerra announced Wednesday that California is still boycotting North Carolina. He explained that California’s ban on state-funded travel there is continuing because North Carolina continues to discriminate against people who are gay, lesbian, bisexual and especially transgender.

The attorney general’s announcement hasn’t come a moment too soon. Actually, it’s come about a week too late. A week ago the NCAA caved and decided that it would start bringing games back to North Carolina. California’s strong stand for equality might have prevented that from happening.

The backstory: California law prohibits state funding for travel to states that have enacted anti-LGBT laws since June 2015. The new measure, Assembly Bill 1887, instructs the attorney general to keep an online list of states subject to the ban. So far, four have been included: Kansas, which allows religious student groups to discriminate in choosing their members; Mississippi, where a law permitting religious discrimination against gay couples remains tied up in court; Tennessee, where therapists can now legally reject LGBT clients; and North Carolina, whose notorious “bathroom bill” prompted nationwide boycotts, including the NCAA’s.

The travel ban has its costs. In the University of California system, where I teach, professors can’t use state money to present research at places like the University of North Carolina or Vanderbilt; sports teams aren’t scheduling games in banned states; debate squads have already skipped competitions. But the costs are worth it if the boycott keeps our students and employees away from discrimination, and if it helps sway states toward California’s vision of equality.

Given these stakes, it is important to have clarity about which states are included, and why. And yet these questions turn out to be more complicated than they first appear.

Take Florida. Its “Pastor Protection Act” lets ministers refuse to celebrate same-sex marriages. This might look like a law that “authorizes … discrimination against same-sex couples,” the thing that gets a state added to the boycott. But so far, Florida hasn’t been included. Maybe this is because ministers have always had the freedom under the First Amendment to decide who they’ll marry. If so, Florida’s law doesn’t take away rights LGBT couples would otherwise enjoy. Is that why travel to Florida is still allowed? No one is saying. When I asked the attorney general’s office, I was told its legal analysis is confidential – protected by attorney-client privilege.

This lack of transparency matters as states keep passing laws targeting the LGBT community. South Dakota and Kentucky enacted anti-gay measures in the last month, but neither has yet been added to the list. Becerra’s office hasn’t said why not, or if or when they might be added in the future. In the meantime, state employees and students book travel to those states at their peril.

As for North Carolina, the so-called “repeal” of its bathroom bill failed to protect trans men and women or even clarify which bathroom they must use. Worse, the new law prohibited schools and towns from making their own bathroom policies, and it froze local nondiscrimination law until 2020. Because this bill “has the effect of voiding … existing … local protections,” Becerra was absolutely right to find that California’s travel ban must remain in force.

The attorney general’s announcement is important. North Carolina now knows that California isn’t fooled by its weak compromise. The NCAA now knows that California’s athletes won’t be showing up for any games it schedules there. Now the public just needs to know the rest of the attorney general’s thinking about who we should (and shouldn’t) be boycotting. The travel ban is meant to send a message. Let’s make sure the message we’re sending is clear.

Brian Soucek is acting professor of law and Martin Luther King Jr. Hall Research Scholar at UC Davis School of Law. He can be contacted at bsoucek@ucdavis.edu.

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