The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Straights Need Not Apply, for City of West Hollywood Guaranteed Income Pilot Project


From the West Hollywood site:

The City of West Hollywood, in collaboration with nonprofit partner, National Council of Jewish Women/LA, will open applications for the first pilot project for guaranteed income in the nation aimed at evaluating the impact of cash payments on the financial stability and quality of life of LGBTQIA older adults. Guaranteed income is a direct and regular cash payment – no strings attached – provided to a specific group of people for a designated time. Guaranteed income pilots are a way to test the impact of these payments, while also providing a service to help financially stabilize community members and learn information to help create future, evidence-based policies and programs.

The program makes clear that, to be eligible, the applicant must (among other things) "Identify as Lesbian, Gay, Bisexual, Transgender, Queer, Intersex or Asexual (LGBTQIA)," as well as be poor and 50 or older.

The California Supreme Court, as it happens, has expressly held (interpreting the state constitution's equal protection clause) that "statutes according differential treatment on the basis of sexual orientation are subject to the strict scrutiny standard of review." And of course equal protection principles apply to all classifications in programs in which the government engages (even if in "joint participation" with a private party) and not just to classifications written into the statute.

Here's the program's explanation for the sexual orientation discrimination suffice to justify it:

The City of West Hollywood is focusing on LGBTQIA older adults living on a low income because of the City's history, current population, and data that shows that LGBT older adults are less financially secure than their non-LGBT peers due to experiencing lifelong disparities and barriers to accessing programs that support aging adults.

I'm pretty skeptical about this, but it would be interesting to see what detailed evidence and argument the city can offer to support this in court.