Can the California Coastal Commission decide if trans women get to surf in women’s competitions?

Reality Check is a Bee series holding officials and organizations accountable and shining a light on their decisions. Have a tip? Email realitycheck@sacbee.com.

The California Coastal Commission is the latest organization to weigh in on the issue of trans athletes and women’s sports, declaring that a Huntington Beach surf competition’s organizers must allow a trans woman to participate, lest they violate the California Coastal Act.

The debate around trans women athletes has become a culture war flashpoint in recent years, affecting such institutions as the NCAA and the International Olympic Committee — and now, the International Surfing Association and a Southern California surf shop. The issue hit such a nerve in Yolo County that it resulted in a months-long legal conflict between Moms for Liberty and county librarians, who abruptly ended a Moms for Liberty presentation about why trans women shouldn’t play on women’s sports teams, resulting in protests, bomb threats, and a $75,000 settlement.

But the Coastal Commission adds another dimension to the contentious issue, begging the question of who has the authority to intervene where sports, sea, and gender identity overlap — and if the commission has taken its job as a protector of the Golden State’s coast too far.

“This is fundamentally an issue of equitable beach access for all people,” said Kate Huckelbridge, executive director of the California Coastal Commission, in a statement to The Sacramento Bee.

“The event in Huntington Beach would have discriminated against transgender surfers by unfairly limiting their participation in an event in state waters. That’s a situation our agency takes very seriously.”

Discriminating against trans athletes ‘does not meet’ Coastal Act requirements

The declaration by the Coastal Commission came as a result of Australian pro-surfer Sasha Jane Lowerson attempting to enter the Huntington Beach Longboard Pro contest, which took place May 11. Todd Messick, a surfer and surfboard designer who organized the event, said in an April 25 Instagram post that he does not feel that it’s fair to let a “biological male” participate in a women’s competition.

Members of Surf Equity, a group that advocates for gender equity and equality in surfing, reached out to the Coastal Commission for support. The commission reached out to Messick, who then agreed to allow Lowerson to join the competition, though she decided not to, saying the controversy took the fun out of competing.

“Prohibiting or unfairly limiting transgender athletes from competing in this or any surf competition that takes place in the coastal waters of California does not meet the requirements of the public access policies of the Coastal Act and impedes access by discriminating against transgender surfers,” Huckelbridge wrote to Messick in April.

Huckelbridge also reminded Messick that the International Surfing Association allows trans women to surf in women’s competitions if they meet certain hormone level criteria. Lowerson has met this criteria for the last three years.

In the weeks since, Messick has doubled down on his initial stance.

“You’ve all been lied to,” Messick said in a May 15 follow up Instagram video, “there’s an agenda, there’s a false narrative going on ... we’ve been ambushed by (Lowerson and Surf Equity).”

Messick called on the ISA to change its policy, and called the “trans agenda” “absurd.”

“Let me just be clear that we made our statement for the protection of female athletes,” he said. “It’s for equality, for the acceptance of human beings.”

Lowerson called Messick’s handling of situation “shameful and shady.”

What is the California Coastal Commission, and why is it weighing in on trans rights?

Established in 1972 through a proposition that later became the Coastal Act of 1976, the commission’s main purpose was, and continues to be, protecting California’s coast from over-development and environmental harm, and keeping the state’s 800 miles of coastline accessible to all members of the public — not just wealthy property owners.

The commission works with the 15 counties and 60 cities located on the coast (excluding the San Francisco Bay Area), as well as the state legislature, on issues like zoning ordinances, permitting, and environmental protections.

But its critics have blamed it for exempting coastal counties from statewide affordable housing requirements, quashing the rights of property and business owners, and overriding local control.

As steward of California’s beaches, and access to them, the commission has a long history of intertwining civil rights and social justice causes with beach access — a stance considered by legal experts to be either progressive politicking — or significant bureaucratic overreach.

“I think this shows that (the commission) has really expanded the concepts of development and public access beyond what I think any of the legislators would have considered at the time the Coastal Act was passed,” said Jeremy Talcott, a lawyer with the Pacific Legal Foundation, a nonprofit law firm that promotes “individual freedom” and takes on cases against government institutions.

The commission’s environmental justice policy dictates that “the Commission as an agency is committed to protecting coastal natural resources and providing public access and lower-cost recreation opportunities for everyone.”

“The agency is committed to ensuring that those opportunities not be denied on the basis of background, culture, race, color, religion, national origin, income, ethnic group, age, disability status,sexual orientation, or gender identity,” the policy states.

This policy has played out in myriad ways. In the 1980s, for example, an exclusive beach side social club in Santa Monica, which only allowed white men to join, sought to expand its location. Because it would expand onto land owned by the city and state, the commission, as a permitting body, denied the request until the club changed its discriminatory membership policies. The Jonathan Club sued, and the case went all the way the Supreme Court, whose members voted in the commission’s favor.

The commission also consistently penalized wealthy individuals who neglect its permitting processes, like Facebook co-founder Sean Parker, who hosted a wedding in Big Sur, where he damaged several historic Redwoods, as well as the Ritz-Carlton Hotel in Half Moon Bay for its failure to keep access open to neighboring public beaches.

Protecting trans peoples’ rights to access beaches seems like a natural progression of the commission’s longstanding goal.

Coastal Commission not intended to ‘dictate all human activity in the coastal zone’

Critics of the commission say that their involvement in the Huntington Beach surf contest is par for the course.

“It’s certainly an example of the mission creep that the commission has engaged in,” Talcott said.

Talcott has represented different individuals and businesses who have taken the commission to court, and is currently working on a case with a development company that is trying to build three homes on the Central Coast town of Los Ojos. The case, Shear Development v. California Coastal Commission, has made its way to the California Supreme Court.

“Originally, the Coastal Act was passed with the intention to carefully balance property rights with coastal environmental resource preservation,” Talcott said. “And while, within that, there is a goal of maximizing public access ... I do not think it was intended to allow a relatively small group of unelected officials to dictate all human activity within the coastal zone.”

For political outsiders, the commission’s decision to take on the issue of trans rights might seem far out of field. But for lawyers like Talcott and those who have long expressed concerns that the commission is overreaching, such a move is unsurprising, and some precedent already exists.

“The commission does have the authority to issue civil penalties” such as it did with the Jonathan Club, Talcott said. Had the letter to Messick gone ignored, the commission could have issued a Notice of Violation and imposed a penalty.

“They’ve certainly showed the willingness to impose very large penalties against individuals, and in order to do that, there is very little due process afforded to the person going before the commission” because civil cases play out so differently from criminal cases.

Talcott personally believes a penalty in this case would have fallen outside of “the actual scope of the Coastal Act,” but that the way the law is written, they likely could have been able to pull it off.

“It’s one of those issues that I’m certain would have to be tested in court to get a real answer,” he said. “It seems like the sort of social and political dispute that most people really wouldn’t think the commission is well-suited to resolve.”

“We have ways for people to resolve these types of conflicts and decide which way California wants to head. What I don’t think people want is to hand all of that authority to a handful of people whose mission originally was to protect our California coastline.”