Thursday, September 5, 2019
Lawsuit Challenges California's Board Gender Diversity Law as Presumptively Invalid under Equal Protection
Cydney Posner, A First Challenge to California's Board Gender Diversity Law
It was only a matter of time. As reported here on Bloomberg, a conservative activist group has filed a lawsuit,Crest v. Alex Padilla, in California state court on behalf of three California taxpayers seeking to prevent implementation and enforcement of SB 826, California’s Board gender diversity legislation. This appears to be the first litigation filed to challenge the new law. Framed as a “taxpayer suit,” the litigation seeks to enjoin Alex Padilla, the California Secretary of State, from expending taxpayer funds and taxpayer-financed resources to enforce or implement the law, alleging that the law’s mandate is an unconstitutional gender-based quota and violates the California constitution. Even proponents of the law recognized the possibility of legal challenges. ***
In the complaint, the plaintiffs contend that the law’s requirement for female representation on corporate boards “employs express gender classifications. As a result, SB 826 is immediately suspect and presumptively invalid” under the equal protection provisions of the California Constitution and subject to “strict scrutiny” in the California courts. The complaint requests entry of a judgment declaring any expenditures of taxpayer funds to implement or enforce SB 826 to be illegal and issuance of an injunction permanently prohibiting the Secretary from expending taxpayer funds to enforce or implement the provisions of the legislation.
h/t Stefan Padfield
Judicial Watch, a conservative activist group, has filed the first lawsuit challenging the constitutionality of Senate Bill 826 (SB 826), California’s mandatory board diversity law requiring women on public company boards of directors. The lawsuit was filed against the California Secretary of State on behalf of three California taxpayers on August 6, 2019, in the Los Angeles Superior Court and seeks a judgment that any expenditure of taxpayer funds and taxpayer-financed resources to enforce or carry out the provisions of SB 826 is illegal.
Plaintiffs argue that the gender classifications used in SB 826 can only be justified by a compelling government interest, which the Secretary of State has failed to establish. The lawsuit cites then-Governor Jerry Brown’s words in his signing message acknowledging that SB 826 has “potential flaws that indeed may prove fatal to its ultimate implementation” and that “serious legal concerns have been raised” to the legislation. The complaint is available here.
For my thoughts and analysis on the permissibility of gender quotas, including corporate boards, see Tracy Thomas, Making the Case for Gender Quotas, discussing my article, Reconsidering the Remedy of Gender Quotas, Harv. J. L. & Gender (online) (Nov. 2017).