San Diego Municipal Code Div. 96 Discrimination Based On Sexual Orientation

(Editors note added to title 4–16–1990.)

Discrimination based on sexual orientation or gender identity deprives the City of the fullest utilization of its resources and capacity for development and advancement. Such discrimination poses a substantial threat to the health, safety and welfare of the community. Existing state and federal restraints on arbitrary discrimination are inadequate to meet the particular problems of this City. It is hereby declared as the public policy of the City of San Diego that it is necessary to protect and safeguard the right and opportunity of all persons to be free from discrimination based on sexual orientation or gender identity or expression. Notwithstanding the intent of this ordinance to protect all citizens from arbitrary discrimination, nothing in this ordinance shall be construed as endorsing, encouraging, or approving a particular lifestyle nor is it the intent of this ordinance to give special privileges or rights to any person based on sexual orientation or gender identity or expression. (Amended 7–28–2003 by O–19203 N.S.)

Each word or phrase that is defined in this Division appears in the text of the Discrimination Based On Sexual Orientation Code in italicized letters.

Business Establishments. As used in this Division, the term "business establishment"
shall mean any entity, however organized, which furnishes goods or services to the
general public. An otherwise qualifying establishment which has membership
requirements is considered to furnish services to the general public if its membership
requirements: (a) consist only of payment of fees; or (b) consist of requirements
under which a substantial portion of the residents of this City could qualify.

Educational Institutions. As used in this Division, the term "educational institution"
shall mean any entity, however organized, which engages in the developing of
knowledge and makes available the processes of training and instruction.

Employer. As used in this Division, "employer" includes any private person regularly
employing five or more persons. "Employer" shall not include any federal, state or
local agencies.

Ch. Art. Div.
5 2 96 1

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

Frivolous. As used in this Division, the term "frivolous" shall mean (a) totally and completely without merit; or (b) for the sole purpose of harassing an opposing party.

Gender identity. As used in this Division, “gender identity” shall mean having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s actual or perceived sex.

Individual. As used in this Division, the term "individual" shall mean the same as the term "person." Wherever this Division refers to the sexual orientation or gender identity of any individual, and the individual is a group, the phrase shall mean the sexual orientation or gender identity of any member of the group.

Person. As used in this Division, the term "person" shall mean any natural person, firm, corporation, partnership or other organization, association or group of persons however organized.

Reasonable. As used in this Division, "reasonable" shall mean that which a person of ordinary care and prudence would believe to be true.

Religious Organizations. As used in this Division, the term "religious organization" shall mean an organization recognized as such under 26 U.S.C. section 501(c)(3).

Sexual Orientation. As used in this Division, the term "sexual orientation" shall mean an individual’s supposed or actual sexual preference for any lawful sexual activity. (Amended 7–28–2003 by O–19203 N.S.)

(a) Unlawful Employment Practices.

(1) Employers — Discrimination. It shall be an unlawful employment
practice for an employer to fail or refuse to hire, or to discharge any
individual, or otherwise to discriminate against any individual with
respect to compensation, terms, conditions or privileges of employment
on the basis (in whole or in part) of such individual’s sexual orientation
or gender identity.

(2) Employers — Segregation. It shall be an unlawful employment practice
for an employer to limit, segregate or classify employees or applicants
for employment in any manner which would deprive or tend to deprive
any individual of employment opportunities, or adversely

Ch. Art. Div. 5 2 96 2

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

affect his or her employment status on the basis (in whole or in part) of
such individual’s sexual orientation or gender identity.

(3) Employment Agencies. It shall be an unlawful employment practice for
an employment agency to fail or refuse to refer for employment any
individual, or otherwise to discriminate against any individual on the
basis (in whole or in part) of such individual’s sexual orientation or
gender identity.

(4) Labor Organizations. It shall be an unlawful employment practice for a
labor organization to fail or refuse to include in its membership or to
otherwise discriminate against any individual; or to limit, segregate or
classify its membership; or fail or refuse to refer for employment any
individual in any way which would deprive or tend to deprive such
individual of employment opportunities, or otherwise adversely affect
her or his status as an employee or as an applicant for employment on
the basis (in whole or in part) of such individual’s sexual orientation or
gender identity.

(5) Job Training. It shall be an unlawful employment practice for an
employer, an employment agency or a labor organization to
discriminate against any individual in admission to, or employment in,
any program established to provide apprenticeship or other training or
retraining, including any on– the–job training program on the basis (in
whole or in part) of such individual’s sexual orientation or gender
identity.

(6) Advertising. It shall be an unlawful employment practice for an
employer, employment agency or a labor organization to print, publish,
advertise or disseminate in any way, any notice or advertisement with
respect to employment, membership in, or any classification or referral
for employment or training by any such organization, which indicates
an unlawful discriminatory practice.

(b) Subterfuge.

It shall be unlawful to do any of the acts mentioned in this section for any
reason that would not have been asserted wholly or partially, but for the
sexual orientation or gender identity of any individual.

(c) Bona Fide Occupational Qualification Not Prohibited; Burden of Proof.

Ch. Art. Div.
5 2 96 3

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

(1) Bona Fide Occupational Qualification. Nothing contained in this
section shall be deemed to prohibit selection or rejection based upon a
bona fide occupational qualification.

(2) Burden of Proof. In any action brought under Sections 52.9609 and 52.9610 of this Division, if a party asserts that an otherwise unlawful discriminatory practice is justified as a bona fide occupational qualification, that party shall have the burden of proving (a) that the discrimination is in fact a necessary result of a bona fide occupational qualification; and (b) that there exists no less discriminatory means of satisfying the occupational qualification.

(d) Exceptions.

(1) Bona Fide Employment Benefit Systems. It shall not be an unlawful
discriminatory practice for an employer to observe the conditions of a
bona fide employee benefit system, provided such systems or plans are
not a subterfuge to evade the purposes of this Division; provided further
that no such system shall provide an excuse for failure to hire any
individual.

(2) Standards of Conduct and Dress Codes. It shall not be an unlawful
discriminatory practice for an employer to establish reasonable
standards of conduct and dress codes which uniformly apply to all
persons, and for such employer to fail or refuse to hire, or to discharge,
any individual as a result of the failure of such individual to adhere to
such standards of conduct or dress code.

(3) Affirmative Action Not Required. Nothing in this ordinance shall be
construed as requiring affirmative action on the basis of sexual
orientation or gender identity.
(Amended 7–28–2003 by O–19203 N.S.)

(a) Unlawful Real Estate Practices.

(1) Transaction Generally. It shall be an unlawful real estate practice for
any person to interrupt, terminate, or fail or refuse to initiate or
conduct any transaction in real property, including but not limited to
the rental thereof; to require different terms for such transaction; to
include in the terms or conditions of a transaction in real property any

Ch. Art. Div. 5 2 96 4

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

clause, condition or restriction; or to falsely represent that an interest
in real property is not available for transaction on the basis (in whole
or in part) of any individual’s sexual orientation or gender identity.

(2) Credit. It shall be an unlawful real estate practice for any person to
refuse to lend money, guarantee the loan, accept a deed of trust or
mortgage, or otherwise refuse to make available funds for the purchase,
acquisition, construction, alteration, rehabilitation, repair or
maintenance of real property; or impose different conditions on such
financing; on the basis (in whole or in part) of any individual’s sexual
orientation or gender identity.

(3) Tenants’ Services. It shall be an unlawful real estate practice for any
person to refuse or restrict facilities, services, repairs or improvement
for any tenant or lessee on the basis (in whole or in part) of any
individual’s sexual orientation or gender identity.

(4) Advertising. It shall be an unlawful real estate practice for any person
to make, print, publish, advertise or disseminate in any way, any notice,
statement or advertisement with respect to a transaction or proposed
transaction in real property, or with respect to financing related to any
such transaction, which unlawfully indicates or attempts to indicate any
unlawful preference, limitation or discrimination.

(b) Subterfuge.

It shall be unlawful to do any of the actions mentioned in this Section for any
reason that would not have been asserted wholly or partially, but for the sexual
orientation or gender identity of any individual.

(c) Exceptions.

(1) Owner–Occupied and Small Dwellings. Nothing in this Section shall be construed to apply to the rental or leasing of any housing unit in which the owner or lessor or any member of his or her family occupies one of the living units and either (a) it is necessary for the owner or lessor to use either a bathroom or kitchen facility in common with the prospective tenant; or (b) the structure contains fewer than three dwelling units.

(2) Effect on Other Laws. Nothing in this Division shall be deemed to
permit rental or occupancy of any dwelling unit or commercial space

Ch. Art. Div.
5 2 96 5

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

otherwise prohibited by law.

(Amended 7-28-2003 by O-19203 N.S.)

(a) Unlawful Business Practice.

(1) Unlawful Practices Generally. It shall be an unlawful business practice
for any person to deny any individual the full and equal enjoyment of
the goods, services, facilities, privileges, advantages and
accommodations of any business establishment on the basis (in whole
or in part) of such individual’s sexual orientation or gender identity.

(2) Credit. It shall be an unlawful business practice for any person to deny
credit to any individual on the basis (in whole or in part) of such
individual’s sexual orientation or gender identity.

(3) Advertising. It shall be an unlawful business practice for any person to
make, print, publish, advertise or disseminate in any way any notice,
statement or advertisement with respect to any business establishment
which indicates that such establishment engages or will engage in any
unlawful business practice.

(b) Subterfuge.

It shall be unlawful to do any of the acts mentioned in this Section for any
reason that would not have been asserted, wholly or partially, but for the sexual
orientation or gender identity of any individual.
(Amended 7–28–2003 by O–19203 N.S.)

(a) Unlawful Service Practices

(1) City Facilities. It shall be an unlawful service practice for any person
to deny any individual the full and equal enjoyment of, or to place
different terms and conditions on the availability of the use of any City
facility on the basis (in whole or in part) of such individual’s sexual
orientation or gender identity.

(2) City Services. It shall be an unlawful service practice for any person to
deny any individual the full and equal enjoyment of, or to impose

Ch. Art. Div. 5 2 96 6

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

different terms or conditions on the availability of, any City service on
the basis (in whole or in part) of such individual’s sexual orientation or
gender identity.

(3) Supported Facilities and Services. It shall be an unlawful service
practice for any person to deny any individual the full and equal
enjoyment of, or to impose different terms and conditions upon the
availability of, any service, program or facility wholly or partially
funded or otherwise supported by the City of San Diego, on the basis
(in whole or in part) of such individual’s sexual orientation or gender
identity. This subsection shall not apply to any facility, service or
program which does not receive assistance from the City of San Diego
which is not provided to the public generally.

(4) Advertising. It shall be an unlawful service practice for any person to
make, print, publish, advertise or disseminate in any way any notice,
statement or advertisement with respect to any service or facility
provided by either the City of San Diego or an organization described
in subsection 3 which indicates that the City of San Diego or an
organization described in subsection 3 engages in or will engage in
unlawful service practices.

(b) Subterfuge.

It shall be an unlawful discriminatory practice to do any of the acts mentioned
in this Section for any reason which would not have been asserted, wholly or
partially, but for the sexual orientation or gender identity of any individual.
(Amended 7–28–2003 by O–19203 N.S.)

(a) Unlawful Education Practices.

(1) Admission. It shall be an unlawful educational practice for any person
to deny admission to any educational institution, or to impose
different terms or conditions on admission, on the basis (in whole or in
part) of such individual’s sexual orientation or gender identity.

(2) Services. It shall be an unlawful educational practice for any person to
deny any individual the full and equal enjoyment of, or to impose
different terms or conditions upon the availability of, any services or
program offered by an educational institution on the basis (in whole or

Ch. Art. Div.
5 2 96 7

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

in part) of such individual’s sexual orientation or gender identity.

(3) Facilities. It shall be an unlawful educational practice for any person
to deny any individual the full and equal enjoyment of, or to impose
different terms or conditions upon the availability of, any facility
owned or operated by an educational institution.

(4) Advertising. It shall be an unlawful educational practice for any
person to make, print, publish, advertise or disseminate in any way
any notice, statement or advertisement with respect to an educational
institution which indicates that such institution engages in, or will
engage in, unlawful educational practices.

(b) Subterfuge.

It shall be an unlawful discriminatory practice to do any of the acts mentioned
in this Section for any reason which would not have been asserted, wholly or
partially, but for the sexual orientation or gender identity of any individual.
(Amended 7–28–2003 by O–19203 N.S.)

Any person who files or maintains a frivolous action under this Division shall be liable for expenses, including attorney fees, incurred in defense of the action. The liability imposed by this section is in addition to any other liability imposed by law. (“Frivolous Action Prohibited” added 4–16–1990 by O–17453 N.S.)

(a) Civil Action. Any aggrieved person may enforce the provisions of this Division by means of a civil action.

(b) Injunction.

(1) Any person who commits an act in violation of this Division may be
enjoined therefrom by any court of competent jurisdiction.

(2) An action for injunction under this section may be brought by any
aggrieved person, by the City Attorney, or by any person or entity
which will fairly and adequately represent the interests of the protected
class.
(“Enforcement” added 4–16–1990 by O–17453 N.S.)

Ch. Art. Div. 5 2 96 8

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (8-2003)

Any person who violates any of the provisions of this Division or who aids in the violation of any provisions of this Division shall be liable for, and the court or a jury shall award to the individual whose rights are violated up to three (3) times the amount of actual damages, but in no case less than two hundred fifty dollars ($250.00) for each and every offense as well as reasonable attorneys’ fees. The court or jury may award punitive damages in a proper case. (“Liability” added 4–16–1990 by O–17453 N.S.)

Actions under this Division must be filed within one year of the alleged discriminatory acts. (“Limitation On Action” added 4–16–1990 by O–17453 N.S.)

No person shall retaliate against any individual because such individual seeks the enforcement of the provisions of this Division. (“Retaliation Prohibited” added 4–16–1990 by O–17453 N.S.)

Any written or oral agreement whereby any provision of this Division is waived or modified is against public policy and void. (“Nonwaiverability” added 4–16–1990 by O–17453 N.S.)

If any part or provision of this Division, or the application thereof to any person or circumstance, is held invalid, the remainder of this Division, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Division are severable. (“Severability” added 4–16–1990 by O–17453 N.S.)

Religious Organizations. Religious organizations and their schools shall be exempt from the terms of this Division. (“Exemption” added 4–16–1990 by O–17453 N.S.)

Ch. Art. Div.
5 2 96 9

San Diego Municipal Code Chapter 5: Public Safety, Morals and Welfare (6-2000)

Article 2: Police — Police Regulations — Offenses Against Government