California’s Unruh Civil Rights Act prohibits businesses from engaging in bias on the basis of race, gender, religion, disability, marital status, gender identity and/or sexual orientation, among other classes. But thanks to recent California court decisions, victims of such discrimination cannot sue offending businesses unless they have presented themselves to the business and been refused equal service.

Effectively, this means that if a business hangs a sign “no gays allowed,” a GLBT person would have to enter the premises, request equal service and be denied such service before he or she could successfully sue for bias, even though the business clearly intends to discriminate.

The problem is section 52 of the Civil Code. The Legislature needs to amend it to ensure that aggrieved victims of bias have standing when a business publishes statements that would lead a reasonable person to conclude it discriminates against classes protected by the Unruh Civil Rights Act.

After all, it shouldn’t be necessary to actually suffer the discrimination. The fact that the business intended to discriminate should suffice to constitute bias. In 1964, when Congress passed the federal Civil Rights Act prohibiting segregation, federal judges did not expect blacks to enter “whites only” restaurants and be refused service before they could sue for bias. This would have meant suffering the very humiliation and indignity the act was legislated to abolish.

While businesses aren’t likely to hang signs barring gays these days, that doesn’t mean they don’t discriminate against us. Unfortunately, such bias is widespread – especially on the Internet, where dating services, private colleges, assisted reproductive services and adoption agencies are among the major culprits.

For example, two years ago an Arizona adoption agency refused service to a California same-sex couple. The couple would not have been able to sue the agency for its discriminatory policy had they not first applied to and been refused by it.

Further, federal civil law does not include sexual orientation as a protected class. GLBT Californians therefore have no recourse other than s. 52 of the Civil Code to litigate against discrimination on this basis.

Two recent court decisions bear on this issue and need to be clarified by amending section 52 – Angelucci v. Century Supper Club and Surrey v. True Beginnings. Angelucci involved a group of men who were charged full price at a supper club where women received a discount. The California Court of Appeal held the men had standing to challenge practice under the Unruh Civil Rights Act but only because they had presented themselves to the restaurant and paid the discriminatory fee. While in Surrey, a man filed a complaint against a dating service that charged male clients more than female clients, but because he had not subscribed to the service both the trial court and the appeal court ruled his suit had no standing.