Media reports say California city plans to give money to transgender and nonbinary residents

Media reports say California city plans to give money to transgender and nonbinary residents
Transgender flag. (Image via St. Louis Post-Dispatch)

Palm Springs, California plans to give a universal basic income (UBI) to transgender and nonbinary residents, according to California TV and print media and Fox News. If that’s true (Reason Magazine says it isn’t), it would violate the state Constitution, and probably the federal constitution as well. Here’s an excerpt from the Fox News article:

Transgender residents in Palm Springs, California are eligible to receive a UBI of up to $900 per month solely for identifying as transgender or nonbinary — no strings attached.

The new pilot program will have $200,000 set aside for allocation after a unanimous vote by the Palm Springs City Council last week.

The city stated that the program is only for individuals who meet a poverty threshold.

Former San Diego City Councilman Carl DeMaio, a Republican who served as the first openly gay member of the city council, called the program “outrageous and discriminatory.”

“We’re completely opposed to guaranteed or universal basic income programs, because they ultimately cause inflation and raise the cost of living on everyone — they don’t work,” DeMaio said in a statement.

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“But at least some of them have minimum income requirements to qualify, whereas this one is no-strings-attached ‘woke’ virtue signaling to the LGBT community in a way that is not only offensive but discriminatory,” he continued.

Twenty transgender and nonbinary Palm Springs residents will receive the free money funded by the taxpayers for 18 months, with advocacy-based health center DAP Health and LGBT advocacy group Queer Works managing the program.

Such a preference for transgender people would be illegal. Preferences for transgender people qualify as sex discrimination, which is generally forbidden by state and federal law.

Partly, that’s because of the Supreme Court’s ruling in Bostock v. Clayton County (2020), which treated discrimination based on transgender status as sex discrimination. And partly, it’s because of Supreme Court decisions saying sexual discrimination is illegal, even when the discrimination is against the majority (like men, in a predominantly-male occupation — the Supreme Court affirmed a lower court decision striking down preferences for women in government contracts in Milliken v. Michigan Road Builders, 489 U.S. 1061 (1989)).

The California Constitution is particularly tough on sex discrimination. Under it, preferences for women are generally unconstitutional, because the state constitution applies “strict scrutiny” to both racial and gender preferences, rendering most affirmative action for women unconstitutional. As a result, state courts have struck down sex-based affirmative-action programs even when they did not totally exclude men. (See Connerly v. State Personnel Board (2001)).

The same principle bars affirmative-action based on transgender status, and discrimination against cisgender people. So Palm Springs can’t set aside money for transgender people, or exclude cisgender people from its guaranteed-income program.

There are situations where the government can give a minority some preference in access to government benefits (as long as it does not totally exclude members of the majority). But those situations aren’t present in Palm Springs.

Palm Springs could only give transgender people a preference in access to welfare, if it had a recent history of widespread discrimination against them. But there is no sign that this pro-LGBT enclave has discriminated against transgender people in recent years, much less in a systematic way.

Preferences for minorities are not legal merely because discrimination occurred in the distant past, such as 20 years ago. They only are legal when there is evidence that the governmental unit giving the preference discriminated against the minority group more recently, and is trying to remedy that recent discrimination. (See, e.g., Brunet v. Columbus, 1 F.3d 390 (6th Cir. 1993) (governmental discrimination against women that occurred 17 years ago does not support affirmative-action today in hiring); Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987) (discrimination that occurred 14 years ago was inadequate basis for affirmative-action hiring preference)).

Moreover, preferences for minorities are not legal merely because the minority group was discriminated against somewhere else in the United States. The federal appeals court in San Franciso ruled that racial minorities couldn’t be given a preference in Washington State, just because there had been discrimination against racial minorities in other parts of the country. (See Western States Paving Co. v. Washington State Department of Transportation (2005)).

So a pro-LGBT city like Palm Springs can’t give LGBT people a preference just because they might face discrimination elsewhere.

Also, under “strict scrutiny,” widespread discrimination against a minority group, not just a few individual instances of discrimination, has to be shown to justify using a preference, according to judges. So even if there were isolated instances of Palm Springs discriminating against transgender people in recent years (which hasn’t been alleged), that wouldn’t justify discriminating in their favor now. (See, e.g., Middleton v. City of Flint (1996)).

The state constitution applies “strict scrutiny” to sexual classifications, so Palm Springs’ preference for transgender people clearly violates state law.

The federal constitution applies only “intermediate scrutiny,” not “strict scrutiny,” to sexual classifications, so it is less certain that Palm Springs is in violation of federal law. It probably violates federal law, too, because even though “intermediate scrutiny” permits sexual preferences in some situations, it rarely permits complete exclusion of a group from a government benefit, such as excluding cisgender people from its universal basic income program. The Supreme Court and other courts have often struck down programs that totally excluded men (See, e.g., Mississippi University for Women v. Hogan (1982)), or discriminated against them as a class (see, e.g., Craig v. Boren (1976)), and courts sometimes strike down programs that merely set aside a portion of a benefit for women, like set-asides in government contracts. (See Milliken v. Michigan Road Builders (1987), a ruling that was summarily affirmed by the Supreme Court in 1989).

“Diversity” is not an excuse to exclude a group from government benefits. A federal appeals court struck down as unconstitutional the FCC’s policy of reserving some broadcast licenses for women, even though the FCC argued that women were “underrepresented,” and that the sexual preference promoted diversity. (See Lamprecht v. FCC (1992)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]


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