Bill requiring gender-neutral kids’ sections faces legal opposition

A bill to require children's departments in stores to have a gender neutral section passed a key state legislative committee on Tuesday despite warnings it could allow people to punish retailers with lawsuits and fines over their subjective experience.

AB 1084 would require "a retail department store with 500 or more employees that sells child care items ... maintain a gender neutral section or area." Beginning in 2024, it would allow the California attorney general, or a district attorney or city attorney, to impose civil liability fines of $250 for a first violation and $500 for subsequent violations. It passed the Assembly Judiciary Committee on a 7-3, mainly party-line vote.

Leading off the opposition testimony, Pacific Justice Institute staff attorney Matthew B. McReynolds cited legal concerns, particularly as they relate to California's Unruh Civil Rights Act.

"This would take the Unruh Act to where significant fines and attorneys' fees could accrue not because anyone is denied a service, denied an opportunity to buy the goods they seek or to enter an establishment," McReynolds said. "What this would do is take the Civil Rights Act to where a customer's subjective experience of feeling uncomfortable with a store's layout could subject that store to onerous penalties and fines."

He also said the bill was likely to be constitutionally preempted. McReynolds pointed to Brown v. Entertainment Merchants Association, 131 S. Ct., 2729 (2011). In this widely cited case, the high court ruled 7-2 that the First Amendment barred a state from passing a law barring the sale of violent video games to minors. The ruling overturned AB 1179, a 2005 California law that required labeling violent games and barred sales to people under 18.

"A Legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test," Justice Antonin G. Scalia wrote for the majority in that case.

Other opponents say the bill could impose a costly new mandate on retailers when many have gone out of business or drastically cut back operations because of the pandemic.

The bill's author, Assemblyman Evan Low, D-Campbell, testified he had many discussions with retailers to write a narrowly crafted bill they could comply with.

The bill is not entirely about issues of gender identity or transgendered children, according to supporters. For instance, the Consumer Federation of California said the bill would help shoppers spot unreasonable price differences between similar items marketed for boys or girls.

"Separating products by gender also helps to disguise the unfortunate fact that female products are often priced higher than male products," the group wrote in a support letter quoted in the committee analysis.

Witness Rob Smith testified at the committee hearing that his 30 years working in the fashion industry for companies including Macy's, Nike Inc. and Levi Strauss & Co. convinced him of the need for gender neutral shopping experiences for parents and children. He is the founder of the Phluid Project,what he described as a "gender free fashion brand" started in 2018.

"What's happening in retail spaces is gender stereotypes are causing serious, long-term harm," Smith said. "What we're trying to do is create a space in the middle where kids and parents can shop safely without gender stereotypes."

Smith said that long before major differences appear between girls' and boys' bodies, retail displays urge girls to "follow your dreams" and "smile." Displays in boys' departments promote messages like "legend" and "you are epic," he said.

But Smith also said that retailers are already moving toward fewer gender-specific displays. In particular, he said, Target Corp. has shifted toward category sections that can contain items associated with either boys or girls.