This week’s question comes from Gina J. of Los Angeles, who asks:
Q: “I used to live in San Francisco and read your column. I moved to L.A. recently. I am a transwoman and, as part of my transition, I wanted to undergo breast implantation. I found an excellent surgeon, and he scheduled my surgery at a local hospital that is part of a religious health care system. I had received approval from Medi-Cal and was excitedly awaiting my surgery when my doctor sent me an email, accompanied by a letter from the hospital, stating that because of their religious beliefs, I could not have my surgery “because God made me a man.” Is this legal?”
A: Dear Gina, I am surprised that this kind of discrimination continues. In 2008, I brought action for a woman named Charlene Hastings against Seaton Hospital when they engaged in similar discriminatory conduct. They changed their policy. As with Seaton, this policy constitutes sexual discrimination and is in direct violation of California’s Unruh Civil Rights Act (California Civil Code Section 51 ), which was enacted 55 years ago in order to prevent this very type of discrimination in the provision of services by businesses.
Section 51 provides that: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, sexual orientation, citizenship, primary language or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
Under Section 51(e)(5) “Sex” includes, but is not limited to, pregnancy, childbirth or medical conditions related to pregnancy or childbirth. “Sex” also includes, but is not limited to, a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.
This proscription includes discrimination against transpeople or those whose gender identity does not conform to their sexual designation or assignment at birth. The Unruh Act includes a broad range of business organizations. An organization is not excluded from ambit of Unruh Civil Rights Act simply because it is private or nonprofit. (Harris v. Mothers Against Drunk Driving.)
There is no exception under the Unruh Act for a religious institution operating a business establishment, regardless of whether it is for-profit or otherwise. Nonprofit organizations not engaging in actual business may be exempt from the application of Unruh’s prohibition on discrimination. However, if the same organization is engaged in actual business transactions with the public, then it is prohibited from discriminating based against someone within the protected classifications. In Warfield v. Peninsula Golf & Country Club, the court found that the “very broad terms” of Unruh applied even to a social and recreational club that was wholly owned by its members, because the club “engaged in a variety of ‘business transactions’ [such as selling nonmembers meals and allowing them to participate in social functions] with nonmembers on a regular basis” (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal. 4th 594, 630).
The hospital, in conducting breast implant procedures for the public, is engaged in a much more sophisticated set of business transactions than those cited by the Warfield court. When the hospital decided, based on your gender/gender identification, not to allow your physician to use their facility to perform your augmentation, they engaged in a business decision that was unlawfully discriminatory.
A lawsuit can be brought against the hospital seeking not only recovery of damages for the discrimination against you but, if they won’t terminate their discriminatory conduct against transpeople, then to enjoin (prohibit) them from engaging in the service in a discriminatory manner. Given the fact that plastic surgery is a cash cow for these hospitals, they will most likely change their decision.
(Author’s note: A letter has been sent to the hospital on behalf of the reader.)
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.