B123738

IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA

PETITION FOR REVIEW
After Decision by Court of Appeal
Second Appellate District
Division Three

TABLE OF AUTHORITIES CITED

STATUTES

Page

Civil Code

§51 ..................................................................................................................................passim

§51.7 ..............................................................................................................................passim

Code of Civil Procedure

§1086 ..................................................................................................................................

Cartwright Act, Bus. & Prof. Code §16700, et seq. .............................................................

OTHER AUTHORITIES

Tobriner & Grodin, "The Individual and the Public Service Enterprise in the New Industrial State" (1967) 55 Cal.L.Rev. 1247

PETITION FOR REVIEW

TO THE HONORABLE CHIEF JUSTICE, RONALD M. GEORGE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:

Terri Nicole Hess, plaintiff and petitioner herein, petitions this Court for review of the order of the Court of Appeal, Second Appellate District, Division Three, filed on July 24, 1998, denying review of petitioner’s petition for extraordinary relief. A copy of the order of the Court of Appeal is attached hereto as Exhibit A.

ISSUE PRESENTED FOR REVIEW

Petitioner believes this to be a matter of first impression.

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REASONS REVIEW SHOULD BE GRANTED

Petitioner is a transitioning transgendered woman who was a registered guest of the defendant hotel. On the evening the incident occurred, petitioner had patronized the hotel’s pub and had stepped across the hallway to use the public women’s restroom--something she had done on numerous previous occasions without incident. On this particular evening, however, when petitioner emerged from the restroom, she was immediately set upon and beaten by six security guards who were employed by the hotel. She was taken to a loading dock, where one guard threatened her life. The guards had petitioner arrested for battery. When petitioner was released from custody and returned to the hotel, she was prevented from returning to her room by the hotel manager who presented her with her luggage and demanded that she immediately check out.

At the time of the incident, petitioner had been living as a woman full time for more than one year. She was dressed as a woman, she looked like a woman, she was registered at the hotel as a woman, and both her California drivers’ license and her United States passport listed her sex as "female."

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At the hearing on defendants’ demurrer, the court stated:

Although petitioner’s Unruh causes of action were dismissed without leave to amend, nowhere does respondent court state that petitioner’s complaint is incapable of being amended to allege facts which support her contention that she is a woman. Had petitioner been allowed to amend, she could have included the facts that the United States of America and State of California recognize petitioner as a woman as both her passport and California Drivers’ License show her sex as "female." It is apparent from the respondent court’s remarks that had Judge Curry been allowed to consider these facts, his ruling, in all probability, would have been different.

In light of the remarks of the court, the availability of additional facts in support of petitioner’s causes of action, and the judicial policy against dismissals without leave to amend, the order of respondent court dismissing without leave to amend was an abuse of discretion.

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Even if the respondent court believed that defendant hotel was entitled to bar petitioner from using the women’s restroom, defendant security guards were not entitled to beat petitioner based upon her status, and defendants’ demurrer to petitioner’s 8th cause of action alleging violation of Civil Code §51.7 should have been denied.

Petitioner had been a guest or patron of defendant hotel on numerous prior occasions. She was known to hotel employees. The defendant guards knew or perceived that petitioner was transgender and the violence the perpetrated upon her was based upon that knowledge or perception.

The Legislature’s intent in enacting Unruh was to prohibit all forms of discrimination in public accommodations by businesses based upon arbitrary classification relating to sex, unconventional dress, personal appearance, etc. This case falls squarely within the guidelines set forth by the Legislature and by the Courts. The parameters for protections have already been clearly enunciated--but the word "Transgender" has yet to be spoken. It is time to break the silence.

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Transgendered individuals are subjected to the most insidious and outrageous forms of discrimination and denial of public accommodations than virtually any other minority in our country today. Akin to the racial discrimination of the 1960's, transgenders are denied access to lodging and restaurants, gyms, dressing rooms, public restroom facilities, and are denied health care, access to homeless shelters, rape crises centers, and battered women’s shelters. Landlords legally refuse to rent to them, and employers legally refuse to hire, or readily fire, them when their status becomes known. Some medical and psychiatric facilities, as well as most homeless shelters, require proof of gender before transgenders may be admitted or receive services. Such discrimination in a civilized society is intolerable, especially when a vehicle exists to prevent such discrimination, vis a vis, the Unruh Civil Rights Act.

Although only limited studies have been conducted, it is estimated that upwards of 3% of our population is transgendered. Clinically, this is known as "gender dysphoria," which is defined as "a persistent discomfort and sense of inappropriateness about one’s assigned sex." Although generally used interchangeably, the terms "sex" and "gender" are not the same at all. While "sex" refers to the kind of genitals we possess, as well as what we do with our bodies during intimate relations with other persons, "gender" on the other hand, is an expression of masculinity or femininity, which is a sense of self. When people hold the conviction that gender identity or presentation and physiology must be the same (i.e., that our genitals must match our gender), their reaction to a person who contradicts that convention may be confusion, agitation, ore even rage. (Exhibit B, p. 8.)

In the July 20, 1998, issue of Time magazine, reporter John Cloud reports, in "Trans Across America," an article on the struggles of transgender people (See Exhibit C), that a 1997 survey conducted by GenderPAC, a national advocacy group seeking gender, affectional, and racial equality, revealed that fully 60% of those responding to the survey had been assaulted. (See Exhibit D.) Similar tales of assault, discrimination and denial of public accommodations were reported to the San Francisco Human Rights Commission on May 12, 1994, during its public hearing investigating discrimination against transgendered people. (See Exhibit B.) During that hearing some 68 speakers during a five hour period encouraged the Commission to recommend the inclusion of "gender identity" as a protected classification under that city’s anti-discrimination ordinance.

During testimony before San Francisco’s Human Rights Commission, Lester Olmstead-Rose, Executive Director of Community United Against Violence advised the Commission that transgendered persons are targets of hate violence much more than any other group. (Exhibit B, p. 24.) John Bartolome, Director of Social Services for Saint Anthony’s Foundation in San Francisco, called San Francisco’s homeless transgendered, "the poorest of the poor," and among the most oppressed groups in the city. (Exhibit B, p. 26.) Other speakers told of the brutal rape and murder of a young female-to-male (hereinafter referred to as "FTM") transsexual in Nebraska following newspaper reports of his female anatomy. In Nebraska, as in California, this brutal act was not covered by the state’s hate crime statute. (Exhibit B, p. 19.) Matt Rice, another FTM, was denied access to his workplace’s restroom facilities, told not to discuss his gender with customers, and to respond to customers as whichever gender they perceived him to be. (Exhibit B, p. 23.)

Gianna Eveling Israel, a counselor with the Center for Special Problems in San Francisco, testified before the Commission that many transgendered persons seek her assistance as the result of abuse, harassment and violence perpetrated upon them. She told of a 21 year old transsexual who was slapped and threatened, but who could get no assistance from the police; a 38 year old transgender who was refused service at a restaurant; and a 24 year old transsexual who was thrown out of a store for being too flamboyant. (Exhibit B, p. 40.)

Additionally, testimony was provided by Dominique Leslie, representing Transgender HIV Services Coalition, that many landlords refuse to rent to transgendered individuals; that they are refused services at health care centers, substance abuse clinics, and homeless shelters. Some service providers require proof of gender before transgenders will be admitted or treated. (Exhibit B, p. 41.) Ms. Leslie related complaints that transgenders are the target of violence and abuse, are denied services, and are barred from using gyms, bathrooms and dressing rooms. Id.

As the result of this hearing the Human Rights Commissions made several findings, including the following:

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San Francisco is not the first place to recommend and to implement protection for transgenders. In 1974, Minneapolis became the first jurisdiction in the United States to offer protections for transgendered people. Thereafter, in 1986, Seattle extended the definition of sexual orientation to include transgenders. The City of Santa Cruz was next, which in 1992 passed legislation protecting transgenders. The State of Minnesota became the first, and only, state to offer protections to transgender people in 1993. Canada is the only known country to offer such protections, beginning in 1993. Id., p. 18. In 1994, San Francisco amended its anti-discrimination ordinance to prohibit discrimination in public accommodations, inter alia, based upon gender identity. (See Exhibit E.) In 1997 the City of Evanston, Illinois became the most recent known city to pass such legislation. (Exhibit B, p. 49.) Finally, just last year, Assemblywoman Sheila Keuhl introduced AB 1999, seeking to amend California’s hate crimes law to specifically include protections for transgendered individuals. Due to the support of several key Republican lawmakers, including Attorney General Dan Lungren, its passage into law is expected this year.

The Unruh Civil Rights Act, as will be discussed in detail, infra, has been amended many times since it was originally enacted in 1897. Each and every time the Act has been amended, the Legislature has broadened its scope and increased its coverage of protected groups. Initially, the statute was applicable to all citizens. This was subsequently amended to read persons, including non-citizens. Likewise, the nature of the business establishments covered by the Act, once enumerated, has been amended to include all business establishments of every kind whatsoever.

Civil Code Section 51.7, which prohibits violence or threats of violence against individuals based upon known or perceived characteristics such as race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, was recently amended to include language adopted from case law, that the aforementioned categories were illustrative, not restrictive.

Clearly to deny the use of public restroom facilities to petitioner, then to deny her a room, and to force her to check out in the wee hours of the morning because petitioner, who was known to, or perceived by defendants to be a transgendered woman, is a violation of Unruh Civil Rights Act, and is just as clearly violative of the stated intent of the Legislature to prohibit all arbitrary discrimination in public accommodations by business establishments.

Even if it were permissible, for the sake of argument only, to deny petitioner the use of public restroom facilities, to have subjected her to threats of violence and violence based on her transgenderism or their perception thereof when she emerged from the restroom, was nonetheless a violation of section 51.7 of the Act.

The decisional law of the Courts of this State, has consistently broadened the scope of the Act, finding that the Act is to be liberally construed so as to give full force and effect to the intention of the Legislature, e.g., to prohibit all forms of arbitrary discrimination by business establishments. Although nowhere delineated in the Act, in 1951, this Court found that homosexuals were entitled to protection. The Act has also been held to encompass other unexpressed classifications, such as unconventional dress or physical appearance, families with children, and persons under 18 years of age. King v. Hofer (1996, 1st Dist.) 42 Cal.App.4th 678, 682.

Given the stated intent of the Legislature and the decisional history of the courts, it is within the sound discretion of this Court to bring to an end this insidious discrimination by extending to transgenders the protections to which they are entitled as "persons within the jurisdiction of this state." To do less lends a hollow ring to the words of the Legislature and the decisional history of this Court.

Although the Court of Appeals reluctantly grants extraordinary relief during the pleading stage, the Court has previously exercised its discretion to review by extraordinary writ under the following circumstances: 1) the propriety of cross-complaints alleging malicious prosecution [Babb (1971), infra]; 2) the recoverability of punitive damages [Stencel (1976), infra]; 3) the applicability of B&PC section 25602 [Coulter (1978), infra]; 4) the constitutionality of prisoner monitoring [DeLancie (1982), infra]; 5) infringement upon first amendment speech [Environmental Planning (1984), infra]; 6) the recoverability of attorneys’ fees in insurance bad faith cases [Brandt (1985), infra]; and, 7) applications of RICO and the Cartwright Act to the medical profession [Cianci (1985), infra], among others.

The circumstances surrounding the instant matter are certainly no less compelling, important, or of widespread interest. The Unruh Civil Rights Act was enacted by the Legislature to ensure that all individuals have equal access to public accommodations and to prohibit all forms of arbitrary discrimination by business establishments. To deny accommodations based on transgender status is discrimination based upon arbitrary classification. Such conduct is made illegal under the statute and cannot be allowed to go unchecked.

STATEMENT OF THE CASE

Petitioner believes this to be a matter of first impression. It involves answering the question: "Are transgender individuals, including those who are in transition, entitled to the right to be free from discrimination in public accommodations as set forth in the Unruh Civil Rights Act, Civil Code Sections 51 and 51.7?"

Petitioner is a male-to-female, heterosexual transgendered woman who was denied public accommodations by Defendants/Real Parties in Interest. Petitioner brought suit against defendants claiming, inter alia, that defendants’ actions violated the Unruh Civil Rights Act, Civil Code sections 51 and 51.7. Defendants filed a demurrer to petitioner’s 7th and 8th causes of action alleging violations of the Act, which was granted by respondent without leave to amend. Petitioner thereafter filed her motion for reconsideration based upon a newly discovered opinion by the Legislative Counsel’s Office which stated that it could conceive of no circumstances under which the Act would not protect transgender people which motion respondent denied. Thereafter, petitioner timely filed her petition for extraordinary relief with the Court of Appeal for the Second District. That petition was summarily denied on July 24, 1998. Petitioner’s petition for review is filed within ten days of that order.

STATEMENT OF FACTS

Petitioner is a pre-operative, transgender who identifies herself as a heterosexual woman. At the time of this incident petitioner had been taking hormone treatments, had completed various surgeries, including breast augmentation, and had been living as a woman 100% of the time for 18 months, meaning that she always dressed, acted, and conducted herself as a woman in public and in private. On the date in question, petitioner was a registered guest of defendant hotel, having registered as a woman and presenting as identification her California Drivers’ License which showed her legal, female name, and which listed her sex as female. The credit card which she presented also was printed with her legal, female name.

That night, petitioner patronized the hotel’s pub, and was severely beaten by six hotel security guards as she emerged from a public women’s restroom located in a public hallway across from the hotel’s pub. The hotel guards then took petitioner to a remote area of the hotel, appearing to be a loading dock, where at least one of the guards threatened petitioner’s life. The Beverly Hills Police Department was called. The guards made a citizen’s arrest had petitioner taken into custody for battery. Upon being released from custody, petitioner returned to the hotel, but was prevented from returning to her room. Instead, petitioner was presented with her luggage, which had been packed and brought to the front desk by hotel employees. Defendants demanded that petitioner immediately check out and leave, notwithstanding that it was approximately 2:00 a.m. Petitioner was not refunded the cost of her room. Petitioner pursued battery and hate crime charges with the Los Angeles County District Attorney’s Office, but it declined to file.

Petitioner had patronized the hotel on numerous previous occasions. Defendants knew or perceived that petitioner was a transgendered woman. Defendants’ conduct was premised upon petitioner’s appearance and her status as a transgendered woman.

ARGUMENT

California Civil Code §51 states, in pertinent part:

On appeal from an order sustaining a demurrer without leave to amend, the sole question for consideration is whether the trial court abused its discretion. Carroll v. Hanover Ins. Co. (1968, 1st Dist.) 266 Cal.App.2d 47. In ruling on a demurrer, the trial court must take Plaintiff's factual allegations as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604). The question of plaintiff's ability to prove the allegations, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213). Complaints must be construed "liberally . . . with a view to substantial justice between the parties." (CCP § 452).

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Serrano v. Priest (1971) 5 Cal.3d 584, 591). Leave to amend a complaint is routinely granted. "Unless an original complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion." (King v. Mortimer (1948) 83 Cal.App. 2d 153, 158).

At the hearing on defendants’ demurrer, the court stated:

Although respondent court appears to solicit additional facts to support petitioner’s contention that she is a woman, petitioner’s Unruh causes of action were dismissed without leave to amend. Nowhere does respondent court state that petitioner’s complaint is incapable of being amended to allege facts which support her contention that she is a woman. Had petitioner been allowed to amend, she would have amended her complaint to include the facts that the United States of America and State of California recognize petitioner as a woman as both her passport and California Drivers’ License show her sex as "female." It is apparent from the respondent court’s remarks that had Judge Curry been allowed to consider these facts, his ruling, in all probability, would have been different.

In light of the remarks of the court, the availability of additional facts in support of petitioner’s causes of action, and the judicial policy against dismissals without leave to amend, the order of respondent court dismissing without leave to amend was an abuse of discretion. It is also abundantly clear from the reporter’s transcript that the respondent court did not take petitioner’s statement that she is a woman as true. Furthermore, as will be discussed, infra, the respondent court’s narrow, restrictive reading of the Unruh Civil Rights Act is not supported by law.

Civil Code Section 51.7, prohibits violence, or threat of violence against individuals based on their status. That section, in relevant part, states:

Petitioner had been a guest or patron of defendant hotel on numerous prior occasions. She was known to hotel employees. The defendant guards knew or perceived that petitioner was transgender and the violence the perpetrated upon her was based upon that knowledge or perception.

The Legislature’s intent in enacting Unruh was to prohibit all forms of discrimination in public accommodations by businesses based upon arbitrary classification relating to sex, unconventional dress, personal appearance, etc. This case falls squarely within the guidelines set forth by the Legislature and by the Courts. The parameters for protections have already been clearly enunciated--but the word "Transgender" has yet to be spoken. It is time to break the silence.

Therefore, even if the respondent court believed that defendant hotel was entitled to bar petitioner from using the women’s restroom, defendant security guards were not entitled to beat petitioner based upon her personal characteristics, personal appearance, manner of dress, status, or her perceived status, and defendants’ demurrer to petitioner’s 8th cause of action alleging violation of Civil Code §51.7 should have been denied.

"The [Unruh Civil Rights] Act is to be given a liberal construction with a view to effectuating its purposes." Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 939, 940. The language of the Unruh Civil Rights Act has always been liberally construed by the courts. Id. In keeping with that holding, the courts have, over the years, held that the classifications listed in the Act are merely illustrative, not exhaustive or restrictive. (In re Cox (1970) 3 Cal.3d 205; Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530; King v. Hofer (1996, 1st Dist.) 42 Cal.App.4th 678.) This finding, cited both in pre- and post-amendment decisions, is clear evidence that the liberal construction of the statute is a tenet which has not changed over the years, and should not now be abandoned. In fact, the recently adopted §51.7 contains a broader, more inclusive list of protected classifications than contained in §51, indicating that the Legislature was adopting the broader scope of protected classifications adopted by the courts. Furthermore, the highlighted language from §51.7, supra, was adopted by the Legislature following court decisions containing this interpretation of the Act.

In further support of petitioner’s position is Legislative Counsel Opinion #3178, prepared at the request of State Senator Milton Marks, on the question of whether gender identity, e.g., transsexuality, transgenderism, or the perception by an individual that his or her sexuality differs from his or her biology, is protected by Unruh. In answering this question in the affirmative, the Legislative Counsel’s Office stated: "We cannot conceive of any factual situation in which discrimination against a person on the basis of gender identity would not be prohibited by [Unruh]."

In reaching this conclusion, the Legislative Counsel’s office analyzed the Supreme Court’s holding in Harris v. Capital Growth Investors XIV, infra. Expounding upon the principle of statutory interpretation of ejusdem generis, the court’s expansive interpretation of the classifications of protected individuals based upon personal characteristics, and the rule of interpretation disfavoring unreasonable or absurd consequences, the Legislative Counsel determined that gender identity is a personal characteristic which is within the umbrella of protections afforded by Unruh.

In re Cox (1970) 3 Cal.3d 205 is most instructive in this area. In 1968, Mr. Cox and a young male friend, who wore long hair and unconventional clothing, were ordered to leave a shopping center in San Rafael, California by a security guard. Later, while sitting on a communal bench provided by the shopping center for use by its patrons, and drinking a soft drink which had been purchased at the center, plaintiff and his friend were arrested and charged with violating a municipal ordinance making it unlawful for a person to remain on a commercial premises after being ordered to leave by a person who is "in charge." That ordinance exempted situations which would create a violation of the Unruh Civil Rights Act. Finding that the shopping center performed a valuable public function, the court held that it could no more exclude individuals who wore long hair or unconventional dress than it could blacks or other persons based upon race or political affiliation. Id., pp.217-218.

The Unruh Act, originally enacted in 1897, codifies early common law decisions regarding what constituted public or common callings. Initially these consisted of business such as restaurants, hotels, blacksmiths and tailor shops. Id., p. 212, citing Tobriner & Grodin, "The Individual and the Public Service Enterprise in the New Industrial State" (1967) 55 Cal.L.Rev. 1247, 1250. As originally enacted, the Act was limited to "all citizens" and listed various business establishments which were covered. In 1919, the Legislature extended the Act to public conveyances, and in 1923, to places where soft drinks or ice cream are sold. Id., p. 213. But, in 1959, fearing that courts were interpreting the language of the Act too narrowly, amended the Act to apply to "all businesses of every kind whatsoever." Id.

Then, in 1961, the phrase "all citizens" was replaced with the phrase "all persons," indicating a clear intent to broaden the scope of individuals to whom the Act applied. These revisions followed the court’s decisions in Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, declaring that a race track was a business which was encompassed by the act, and Stoumen v. Reilly (1951) 37 Cal.2d 713, which declared that homosexuals were a protected class under the Act. After tracing and reviewing the Legislative and decisional history of the Act, the court declared:

In the matter at bar, petitioner has been discriminated against based upon her physical characteristics as a transsexual woman. Her decision to dress as a woman, having once been a man, may be deemed unconventional by some, and certainly by defendants--it was the sole basis for their discriminatory conduct toward petitioner.

In the seminal case of Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, plaintiffs were female heads-of-households who were denied the lease of a residence because they did not meet certain financial criteria of the landlord. In that case, the court declined to find a discrimination-by-adverse-impact violation of the Act so long as the landlord’s financial criteria were applied to all applicants. In analyzing the language of the statute, the court sought "to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation." Id., p. 1159. In so doing, the court relied upon the jurisprudence maxim of ejusdem generis, which seeks to ascertain common characteristics among things of the same kind, class, or nature when they are catalogued in legislative enactments, stating:

In King v. Hofer, supra, the court took note that since the decision in Cox, the Act had been judicially construed to encompass several unexpressed classifications, to wit: "unconventional dress or physical appearance, families with children, persons under 18, and homosexuality." Id. p. 682, citing Harris, supra. Just as it is clear that sexual orientation is a protected classification under the act (See Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292; Curran v. Mount Diablo Council of the Boys Scouts (1983) 147 Cal.App.3d 712; Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1, 5; see also Stoumen v. Reilly (1951) 37 Cal.2d 713, 716-717), by logical extension, so is transsexualism a protected classification.

In the court’s discussion of sexual orientation in Beaty v. Truck Ins. Exchange (1992, 3rd Dist.) 6 Cal.App.4th 1455, the court stated, "[w]e use the term "sexual orientation" to refer generally to a person’s sexual habits, practices, predilections, or compulsions with respect to heterosexuality, homosexuality, etc." Id., p. 1460, fn. 3.

As stated in Cox, the Legislature intended, by enactment of the Unruh Civil Rights Act, to prohibit all forms of arbitrary discrimination by business establishments. Id., p. 216. In Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530, 539, the court held that:

It is therefore obvious, given the discussion above, the court’s construction of the classes of individuals who are protected by the Act under ejusdem generis, that transsexualism is a physical attribute having to do with one’s personal beliefs, and as such is included under the umbrella of protections afforded by the Act.

In Cianci, supra, the Court was faced with determining whether the provisions of the Cartwright Act, Business and Professions Code §16700, et seq., which deals with monopolies and restraint of trade, applies to the medical profession even though the medical profession is not included within the language of the statute. There, the Court held:

The Cartwright Act did, however, exempt labor organizations from its provisions. Utilizing the rule of expressio unius est exclusio alterius in reaching its conclusion that the professions were included within the statute, the Court reasoned, therefore, that any group not expressly excluded from the statute should be included. Id. But the Court also looked to the purpose of the statute, which was to promote consumer welfare. It is interesting to note that, unlike in the case at bar, the Cianci Court did not have any direct Legislative history to guide it in reaching its decision, but relied upon a reconstructed history based upon the Cartwright Act’s similarity to the Sherman Act.

Further, in holding that the professions were included in the Act, the Court reasoned:

In the matter at bar, the Unruh Act was enacted to ensure that "all persons" are "entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." The courts have consistently interpreted the Act liberally. Every time the Legislature has amended the Act it has been to increase its scope and the breadth of its protections. The Act is inclusive, and must be read to include petitioner and all transsexual/transgender people. By overruling the trial court’s order granting defendants’ demurrer, this court will be following both the intent of the Legislature as well as the decisional history of this Court.

Finally, defendants would argue that their conduct falls within an exception to the Unruh Act’s requirements, in that businesses are allowed to promulgate reasonable deportment regulations. In this case, defendants argue that it was reasonable to prevent a man from using a restroom designated for the use of women patrons. Defendants further claim that petitioner’s use of said women’s restroom (a public restroom) created a disturbance. To the contrary, the record is completely devoid of any disturbance. Petitioner spoke with a female patron in the restroom. She was not disturbed by petitioner’s presence--because petitioner looked, dressed and acted like a woman. On the other hand, petitioner would certainly have created a disturbance had she used the "men’s" restroom, given her female identity and appearance.

Even if the Court were to determine that defendants’ argument regarding deportment rules was acceptable under these circumstances, it does not give defendants the right to beat petitioner senseless for allegedly having violated their rule. Simply put, defendants’ reasonable deportment argument is pure sophistry. The only disturbance was created by defendants when defendant security personnel beat petitioner in the public hallway. The Court should disregard defendants’ arguments and find in petitioner’s favor.

Code of Civil Procedure §1086 requires that a writ be issued where there is no "plain, speedy and adequate remedy, in the ordinary course of law." In the case at bar, petitioner filed her complaint for damages, containing eight causes of action against defendants. Respondent’s order granting defendants’ demurrer is a final order which as to petitioner’s 7th and 8th causes of action which will prevent her from pursuing those claims in court. Therefore, unless this court grants review of petitioner’s writ petition, she will be without any plain, speedy, or adequate remedy.

Petitioner holds a beneficial interest in the outcome of her lawsuit and will suffer irreparable harm if she is precluded from pursuing her remedies under the Unruh Act, pursuant to the orders issued by respondent. As noted in Wheeler v. St. Joseph Hospital (4th Dist., 1976) 63 Cal.App.3d 345, 363:

Although the Court of Appeals is reluctant to exercise its discretion to review rulings at the pleading stage of a lawsuit, the Court has been willing to do so where the issues presented are compelling, important, of a constitutional nature, or the trial court’s ruling would deprive the requesting party of the opportunity to present a substantial portion of his or her case.

In Babb v. Superior Court (1971) 3 C.3d 841, the court granted extraordinary review of a trial court’s denial of a demurrer to a cross-complaint for malicious prosecution, stating:

This Court also found circumstances which would warrant the issuance of a writ in determining whether a party was entitled to an award of punitive damages, reasoning: "The question whether they are recoverable, or not, will have a material effect upon the scope of the issues to be tried and of permissible pretrial discovery in such matters as the wealth of the defendants." Stencel Aero Engineering Corp. v. Superior Court (1976, 1st Dist.) 56 Cal.App.3d 978, 984. Later, in Coulter v. Superior Court (1978) 21 Cal.3d 144, the Court granted review to determine whether Business and Professions Code section 25602, governing the serving of intoxicating beverages to obviously intoxicated individuals, applied to non-commercial situations. In holding that it did, the Supreme Court overruled the trial court which had sustained demurrers without leave to amend with regard to plaintiff’s causes of action.

In 1982, the Supreme Court again granted extraordinary review in DeLancie v. Superior Court (1982) 31 Cal.3d 865. There, plaintiffs in a class action lawsuit against the San Mateo Sheriff’s Department alleged that the department’s routine monitoring and recording of the conversations between jail inmates and persons on the outside was not for security purposes, but was utilized to gather evidence for criminal prosecutions. The trial court sustained demurrers to plaintiff’s tenth, eleventh and twelfth causes of action, all based upon constitutional grounds, without leave to amend. The court found that mandamus was appropriate "because the issues presented were matters of general importance, and the trial court’s order would bar such issues from being heard on the merits." Id., p. 870.

In Environmental Planning & Information Council v. Superior Court (1984) 36 Cal.3d 188, defendant/petitioner sought review of the trial court’s denial of its motion for summary judgement. Petitioner had circulated a newsletter criticizing plaintiff’s editorial policy, and encouraging people not to patronize advertisers in plaintiff’s newspaper. Plaintiff brought suit seeking to enjoin petitioner’s actions, seeking punitive and compensatory damages. The Court found that extraordinary review at the pleading stage was warranted "because . . . the infringement upon defendants’ constitutional rights of free speech would be implicated if the action were permitted to proceed." Id., p. 190.

The issue of the recoverability of attorneys’ fees in bad faith insurance litigation was deemed to be of sufficient importance for the grant of extraordinary review at the pleading stage in Brandt v. Superior Court (1985) 37 Cal.3d 813. Citing Babb, supra, the court reiterated its reluctance to exercise extraordinary review, but found the issue sufficiently "compelling" and "of widespread interest" to grant review.

Finally, in Cianci v. Superior Court (1985) 40 Cal.3d 903 the court granted extraordinary review to consider the appropriateness of the trial court’s sustaining of defendant’s demurrer, in order to resolve two issues: 1) whether enforcement of RICO claims was within the exclusive jurisdiction of the federal courts (a matter of first impression for California Courts); and, 2) whether the Cartwright Act applied to the medical profession. The Court found both of these issues to be of "significant" importance both to the professions and to the general public due to their impact on the interests of consumers in the state.

As can be seen from the foregoing discussion, the Court has previously exercised its discretion to review by extraordinary writ under the following circumstances: 1) the propriety of cross-complaints alleging malicious prosecution [Babb (1971), supra]; 2) the recoverability of punitive damages [Stencel (1976), supra]; 3) the applicability of B&PC section 25602 [Coulter (1978) supra]; 4) the constitutionality of prisoner monitoring [DeLancie (1982), supra]; 5) infringement upon first amendment speech [Environmental Planning (1984), supra]; 6) the recoverability of attorneys’ fees in insurance bad faith cases [Brandt (1985), supra]; and, 7) applications of RICO and the Cartwright Act to the medical profession [Cianci (1985), supra], among others.

The circumstances surrounding the instant matter are certainly no less compelling, important, or of widespread interest. The Unruh Civil Rights Act was enacted by the Legislature to ensure that all individuals have equal access to public accommodations and to prohibit all forms of arbitrary discrimination by business establishments. To deny accommodations based on transgender status is discrimination based upon arbitrary classification. Such conduct is made illegal under the statute and cannot be allowed to go unpunished.

In Powers v. City of Richmond (1995) 10 Cal.4th 85, 113-114, petitioner’s sought review of the trial court denial of their request for public records under the Public Records Act (Government Code §6250, et seq.). Finding that superior court decision in Public Records Act cases are not appealable, but are subject to review by extraordinary writ, as provided by Government Code §6259, the court held:

The court concluded, holding:

In the case at bar, petitioner has fulfilled these requirements. The order granting defendants’ demurrer is not appealable. Petitioner’s sole means of review is through a petition for extraordinary relief. The rights which petitioner seeks to protect are important, namely, her right not to be discriminated against in her enjoyment of public accommodations and to be free from violence or threat of violence because of her status, or perceived status, as a transsexual woman. The order granting defendants’ demurrer will result in her inability to pursue these important claims in a court of law.

This court should overrule respondent and the Court of Appeal, find that transsexuals fall under the umbrella of protections which are afforded by the Unruh Act, and allow petitioner to prosecute these claims in a court of law. In so doing, this court will be consistent with prior case law, and will further effectuate the intent of the legislature that all persons are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments.

Her petition is timely filed, and all of the requirements of this Court and of state law have been complied with.

CONCLUSION

For all of the above and foregoing reasons, petitioner: 1) is entitled to the relief sought as she is otherwise without any plain, speedy, or adequate remedy at law, as interlocutory orders are nonappealable; and, 2) is entitled to protection under the Act; and, at the very least, 3) is entitled to an opportunity to amend her complaint.

Date: July 31, 1998 PRENTICE & SCOTT

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LARRY R. SHOCKEY

Attorneys for Petitioner/Petitioner