Women Need Not Fear the Civil Rights Initiative : CCRI: Its language strengthens rather than weakens laws against sex discrimination.

The proposed “California civil rights initiative” would prohibit the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex or ethnicity in public employment, public education or public contracting.

Current law lets government discriminate in favor of some people based on their race or sex, to the disadvantage of others who aren’t eligible for such preferences. Californians and Americans generally are overwhelmingly opposed to such preferential policies. The CCRI would effectively prohibit these, while leaving intact outreach and other nonpreferential forms of affirmative action.

There’s no gender gap on this issue. This is hardly surprising because government classifications based on race and sex offend Americans’ sense of fundamental fairness, and women are no exception.

Opponents of the CCRI have recently begun to argue that women should oppose the initiative on the ground that it will permit sex discrimination against them. They focus on the clause of the initiative that says: “Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.”

Opponents have alleged that this clause would permit more discrimination against women than the equal protection clause of the state Constitution currently allows. They have even argued that it would permit courts to allow sex discrimination that meets the very weak test of “reasonableness.”

These allegations are blatantly false. The CCRI can only expand the prohibition against sex discrimination: It would in no way constrict it.

To begin with, the CCRI’s language comes directly from Title VII of the Civil Rights Act of 1964, the landmark anti-discrimination law. In the words of the U.S. Supreme Court, the bona fide qualification principle is “in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.” California state courts correctly view bona fide qualifications the same way.

Why is this language necessary? Because, as the Civil Rights Act recognizes, in rare circumstances, for instance where people’s bodily privacy is involved, sex might be a relevant characteristic. There would be a great danger to women-- and men--if the bona fide qualifications clause were not in the CCRI. For example, the government might then have to let male prison guards do body searches of female inmates. Or it might not be able to exclude men from jobs in women’s locker rooms.

Consider also women’s sports programs. The state’s education code expressly allows separate men’s and women’s sports teams. Without the bona fide qualification clause, the state might have to let men compete for places on women’s teams. This isn’t just a fanciful hypothetical possibility. A court in another state has struck down women-only sports teams as unlawful under its own state constitution, with predictably bad consequences for women’s and girls’ programs.

Wherever sex discrimination is impermissible under existing law, it would remain impermissible after passage of the CCRI. Even if a sex classification meets the initiative’s stringent bona fide qualification test, this just means that “nothing in this section”--nothing in the CCRI itself--prohibits that classification. If a court finds that the classification is still prohibited by other provisions, such as the state Constitution’s equal protection clause, it will remain prohibited.

It’s all the more surprising that opponents have claimed that the bona fide qualification clause might weaken existing protections against sex discrimination, because state courts have already dealt with this issue. In the 1971 state Supreme Court case that first held that sex is a suspect classification (Sail’er Inn vs. Kirby), the court was well aware that federal law permits bona fide qualifications based on sex. The Sail’er decision didn’t strike down all such classifications. It simply held, in effect, that all such classifications must meet the compelling state interest test--the most difficult of all tests to meet, and one that few sex classifications can meet. This ruling would remain unchanged by passage of the CCRI.

Common sense tells us that there are some very restricted and very special cases where gender classifications are appropriate but racial classifications are not. Apart from these very narrow exceptions, which are already recognized by the law and which would in no way be broadened by the CCRI, there’s no more reason for government to discriminate on the basis of sex than there is for it to discriminate on the basis of race. And Americans, both men and women, know it.