When California originally passed SB826, requiring gender diversity on corporate boards of directors, the move was hailed by feminists and social justice warriors as a path to greater gender equality. At the same time, however, even the legal advisors of Governor Jerry Brown were telling him that the law would be nearly impossible to enforce and likely wouldn’t pass constitutional muster. That advice turned out to be prescient after a lawsuit was filed by Judicial Watch to have it struck down. A judge in Los Angeles agreed with the plaintiffs and ruled the law unconstitutional. Supporters of the law called the decision “disappointing,” but most seemed to have been resigned to this outcome before it was even announced. (The Hill)
A Los Angeles judge has ruled that California’s landmark law requiring women on corporate boards is unconstitutional.
Superior Court Judge Maureen Duffy-Lewis said the law that would have required boards have up to three female directors by this year violated the right to equal treatment. The ruling was dated Friday.
The conservative legal group Judicial Watch had challenged the law, claiming it was illegal to use taxpayer funds to enforce a law that violates the equal protection clause of the California Constitution by mandating a gender-based quota.
Most state constitutions contain similar provisions, so this sort of law probably couldn’t be put into effect anywhere. You’re not allowed to establish quotas for employment based on most demographic categories. California’s other law mandating other measures of diversity on a company’s board of directors similarly failed for the same reason.
That’s the problem with attempting to mandate equality. If you’re going to assure equal access for some people, you have to assure it for everyone. SB826 effectively set up a quota system for corporate boards of directors, but the quotas only applied to women. You can’t eliminate opportunities for one gender while mandating opportunities for the other. The same applies for questions of race, sexual orientation, and everything else.
And not for nothing, but the law also ignored some of the other “new realities” that the government of California has embraced lately. How can you mandate a minimum number of women on the board when you can’t even define what a “woman” is? The board members probably aren’t biologists, after all. How could they possibly tell how many women they have?
And the law specifically defined how many people would have to “identify as women.” Every company could just get half of their board members to volunteer to identify that way, change a few captions on the company website, and they would be in compliance.
In another sign that this entire process had been done as a political stunt, Betsy Bogart, the Chief of the Business Programs Division for the Secretary of State admitted that in the three years since the law had been passed, not a single company had been fined. And they didn’t have any intention of fining anyone, suspecting that they would lose a court challenge if they had done so. It was all an attempt to look good for the #MeToo movement.
Similar bills are either in place or being considered in other states right now. You can expect this example to serve as precedent in many of those cases.
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