1 STAFF REPORT
DATE: February 15, 2022
TO: Honorable Mayor and Members of the City Council
FROM: Joseph McDougall, City Attorney
BY: Daniela I. Dykes, Deputy City Attorney
SUBJECT: Introduction of an Ordinance Repealing Burbank Municipal Code Section 3- 3-516 Impersonating Person of the Opposite Sex
RECOMMENDATION
Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK REPEALING BURBANK MUNICIPAL CODE SECTION 3 -3-516 IMPERSONATING PERSON OF THE OPPOSITE SEX.
BACKGROUND
On December 7, 2021, Councilmember Schultz requested a first step report on the repeal of Burbank Municipal Code (BMC) Section 3-3-516 (Impersonating Person of Opposite Sex). This request is consistent with updating the BMC to ensure the Code’s provisions are consistent with federal and state laws ensuring equal protection under the law.
BMC Section 3-3-516 was last revised on February 21, 1987, when it was renumbered by Ordinance Number 3058, but not otherwise substantively amended (Attachment 2).
DISCUSSION
The 14th Amendment of the U.S. Constitution provides that all persons are afforded equal protections under the law. These protections extend to the freedoms of speech and expression (1 st Amendment). Subsequently passed legislation, specifically the federal Civil Rights Act of 1964 and the California Fair Employment and Housing Act (FEHA) prohibit discrimination based on protected classifications, including a person’s gender identity and gender expression.
CITY ATTORNEY’S
OFFICE
2 Staff is foregoing the traditional two- step agenda process because this request is a necessary update to the BMC to make it consistent with both federal and state laws. The City Attorney’s Office has evaluated BMC Section 3-3-516, which prohibits an individual from impersonating a person of the opposite sex, except by special authorization in a place that is required to be licensed under BMC Section 3-3-507. Consequently, BMC Section 3-3-516 makes it a misdemeanor to impersonate a person of the opposite sex.
While there are no records of any attempts at enforcement, it is unlikely BMC Section 3- 3-516 would survive a constitutional challenge as it does not afford equal protection of the law and appears to be a prior restraint on a person’s ability to express themselves. It also arguably discriminates against individuals whose gender identity and gender expression are not consistent with traditionally established forms of a person’s gender identity and expression.
For these reasons, it is the position of the City Attorney’s Office that BMC Section 3-3- 516 be repealed in its entirety.
FISCAL IMPACT
None.
CONCLUSION
To ensure that BMC provisions adhere to federal and state laws, the City Attorney’s Office recommends that the City Council consider repealing BMC Section 3-3-516 in its entirety.
The City Clerk’s Office is separately evaluating options to update the BMC to use gender neutral pronouns. The City Clerk will present available options at a subsequent City Council meeting.
ATTACHMENTS
Attachment 1 – Ordinance Repealing Burbank Municipal Code Section 3- 3-516 Impersonating Person of Opposite Sex
Attachment 2 – Burbank Municipal Code 3-3-516