Lawsuit challenges SF trans pilot income program

  • by John Ferrannini, Assistant Editor
  • Wednesday December 6, 2023
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Mayor London Breed's pilot guaranteed income program for some trans people is the subject of a lawsuit, along with other income programs. Photo: Rick Gerharter
Mayor London Breed's pilot guaranteed income program for some trans people is the subject of a lawsuit, along with other income programs. Photo: Rick Gerharter

A conservative group has launched a legal challenge to a San Francisco program that seeks to provide guaranteed income to some transgender people, as well as programs that help artists, pregnant women, and Blacks.

The Californians for Equal Rights Foundation, San Francisco resident Ruth Parker, and former mayoral candidate Ellen Lee Zhou filed suit in San Francisco Superior Court in May against the city, the San Francisco Unified School District, the Regents of the University of California, and Mark Ghaly, in his capacity as secretary of the California Health and Human Services Agency.

However, plaintiffs' attorney Dan Morenoff told the Bay Area Reporter that the plaintiffs have agreed to remove the UC regents and the school district from the suit and that this will be reflected in an amended complaint "in the next week or so." The UC regents and the SFUSD were named in connection with programs aimed at helping Blacks.

"They [the district] got back to us that there was only one person at the USD who'd been involved and he was a volunteer during his off time," Morenoff said, referring to the school district. "There is probably an interesting story as to why they were described as a participant when they were clear they were not."

The suit alleges that the pilot Guaranteed Income for Trans People, or GIFT, is among several that violate federal anti-discrimination laws, including the 14th Amendment to the United States Constitution and the Civil Rights Act of 1964, the latter of which the U.S. Supreme Court applied to gender identity and sexual orientation in its 2020 ruling in Bostock v. Clayton County.

The other programs the suit alleges are illegally discriminatory are the San Francisco Guaranteed Income Plan for Artists, the Abundant Birth Project, and the Black Economic Equity Movement, or BEEM, which is not funded by the city.

City response

When asked for comment for this report, the San Francisco Office of Transgender Initiatives deferred to the city attorney. For its part, the city denies any wrongdoing.

"San Francisco denies that the programs in question are unlawful or unconstitutional in any manner. We look forward to discussing these matters further in court," stated Alex Barrett-Shorter, deputy press secretary for City Attorney David Chiu.

Dan Mogulof, speaking on behalf of UC Berkeley, stated, "The allegations regarding UC in the complaint are inaccurate."

The school district did not return a request for comment.

Trans program

As the B.A.R. previously reported, two years ago Mayor London Breed had proposed a universal basic income program for up to 150 trans participants that would give them $1,000 a month over two years — at a cost of $2 million — in coordination with the city government's various transgender groups. The idea for a trans-oriented program, according to Pau Crego, executive director of the city's Office of Transgender Initiatives, "was originally advocated for by OTI's Transgender Advisory Committee as part of their Trans Advocacy Week in April, 2021."

Last year, it was announced that the program had started accepting applicants and was up and running. The GIFT program provides 55 low-income transgender San Franciscans with $1,200 each month, for up to 18 months, to help them improve their financial security, as the B.A.R. previously reported.

The complaint alleges that "the GIFT program, as implemented, uses public funds to distribute money to recipients who are selected based on (and excluded based on) race, ethnicity, sex, national origin, gender/gender identity, and sexual orientation," which are the categories covered by the Civil Rights Act.

"By relying on prohibited classifications to distribute government benefits, Defendants have violated the equal protection guarantees of both the United States Constitution and the California Constitution; they have likewise violated Title VI of the Civil Rights Act of 1964," the complaint states. "The U.S. Constitution forbids public entities from engaging in intentional racial discrimination. And yet each of the programs described ... is currently engaging in precisely the kind of intentional racial discrimination the Constitution forbids."

Other programs

The suit targets three other programs as well. The San Francisco Guaranteed Income Plan for Artists, run in collaboration with Yerba Buena Center for the Arts, was launched in 2022, providing $1,000 to 60 eligible artists. According to the complaint, "YCBA and Mayor Breed largely achieved their 'intended' discriminatory goals" because Native American, Native Alaskan, LGBTQ, Black, and Hispanic artists were chosen more than their rates in the city's population "all while choosing Asian artists at a rate less than half their share of the city's population; and omitting any indication that any of the program's beneficiaries are White heterosexuals."

YBCA did not return a request for comment. As the B.A.R. reported in January, the last checks for artists selected to participate in the pilot project were to be sent out last July.

The Abundant Birth Project, which started in 2021, seeks to improve maternal health among Black and Pacific Islander pregnant women in San Francisco — communities that face significantly higher rates of infant mortality — by providing $1,000-$1,500 per month for the duration of the pregnancy. This was the program that allegedly involved a volunteer who'd concurrently worked at the school district, but does no longer.

Finally, the Black Economic Equity Movement, or BEEM, is run in coordination with UCSF and UC Berkeley and funded through the National Institutes of Health, according to its website. It seeks to provide $500 a month to Black young adults "in certain areas in San Francisco and Oakland" for up to a year "so they have a little breathing room, can take care of immediate needs, and plan for the future," according to its website.

When asked why NIH wasn't a plaintiff, Morenoff said it is because "they are a federal agency; they cannot be sued in state court." He added that he didn't know of any connection between BEEM and the City and County of San Francisco, per se.

The complaint states that "Respondents have violated and are currently violating the federal Constitution, state constitution, and Title VI by using government resources and public funds to design, sponsor, support, and administer programs that discriminate on the basis of race, ethnicity, gender/gender identity, and sexual orientation."

Remedy sought in state court

Though the suit deals with two federal statutes, Morenoff — speaking on behalf of the Californians for Equal Rights Foundation, Parker, and Zhou — said that the plaintiffs only have standing in a state court because "we have filed this on behalf of taxpayers — federal courts don't have taxpayer standing and the courts of California do, so that is a forum that can hear the argument."

Morenoff said that the government is only allowed to consider race in select circumstances that are not met by these programs, citing the U.S. Supreme Court's decision earlier this year in Students for Fair Admissions v. Harvard, which effectively ended race-based affirmative action nationwide.

Affirmative action had been started after the civil rights and women's rights movements to advance equity by giving special consideration to groups that had been discriminated against, such as Black Americans and women. The Supreme Court had ruled strict quotas as unconstitutional in 1978, and getting rid of affirmative action altogether has been a long-standing goal of conservative activists.

In California, affirmative action was banned at public universities by voters in 1996. In 2020, Proposition 16 would have lifted that ban, but it failed 57%-42%.

"As the Supreme Court told us last summer in the Harvard case, there are harms done whenever the government racially classifies Americans — when it does so there has to be strict scrutiny," Morenoff said. "In modern jurisprudence, only two interests meet that standard — addressing a government's own recent past history of racial discrimination, and the state's custodial responsibility to people in prisons, like during a race riot. But that's it, that's the whole list. We don't think anything involved in this litigation rises to that standard."

Morenoff was asked, in his view, how recent such discrimination has to be to qualify, and if that includes continuing, structural consequences that have continued even after formal, legal discrimination was outlawed.

"We are really talking discrimination by a government — when the federal government chose to belatedly provide recompense to the individuals interned during World War II, that was a specific harm done to a specific people that the government was remedying," Morenoff said. "When San Francisco has suggested, not in this case, it is looking into a plan to similarly provide something like reparations to specific people who lived in areas mistreated by mid-century slum clearance programs, if they're talking about specific people, I think that would qualify. But that generalized societal harms do not meet the standard."

The African American Reparations Advisory Committee advises San Francisco government on reparations to the city's Black community. In its final report published July 7, it recommended the city issue a formal apology for past harms, and establish an independent Office of Reparations and a committee to ensure equity in the implementation of policy initiatives.

But Breed said this week that funding for the office is on the chopping block due to the city's dire budget situation. KTVU-TV reported that Breed has given the go-ahead for $75 million in mid-year cuts, including funding for the reparations office.

As the reparations report explains, under the guise of slum clearance and the widening of Geary Boulevard, tens of thousands of San Franciscans were displaced from the thriving Fillmore neighborhood in the mid-20th century. The report also calls for potential payments of $5 million meant to rectify some of the past wrongs, though Breed and several supervisors do not support the cash payments, as the San Francisco Chronicle reported.

Zhou ran against Breed when Breed was reelected mayor in 2019, getting 13.9% of the vote compared to Breed's 70.3%. Though the races are nonpartisan, Zhou is a Republican who two years later was at Capitol Hill the day of the January 6 insurrection when a mob stormed the Capitol while Congress was certifying the election of Joe Biden as president. The violence led to five deaths and four suicides among law enforcement. The events led to the unprecedented second impeachment of former President Donald Trump.

Morenoff described Parker as "a concerned person" and "a resident of San Francisco who has lived there a number of decades."

The Californians for Equal Rights Foundation states on its website that "woke culture harms everyone" and takes a stand against diversity, equity and inclusion (DEI) and the teaching of critical race theory.

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