MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., Chief Judge.

Plaintiff William Sassman ("Plaintiff") initiated this action against Edmund G. Brown, Jr., Governor of California, and Jeffrey A. Beard, Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), in their official capacities (collectively "Defendants"). Plaintiff claims Defendants' exclusion of men from California's Alternative Custody Program ("ACP"), as authorized by California Penal Code section 1170.05, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Presently before the Court are the parties' cross-motions for summary judgment and motions to exclude expert reports and testimony. ECF Nos. 50-51, 56, 60. For the following reasons, Defendants' Motion for Summary Judgment and the evidentiary motions are DENIED, and Plaintiff's Motion for Summary Judgment is GRANTED.1

BACKGROUND

Senate Bill No. 1266, which added California Penal Code section 1170.05, was signed into law on September 30, 2010. 2010 Cal. Stat., c. 644 ("SB 1266"). That bill provided for the implementation of the ACP, authorizing the CDCR to "offer a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children... who have been committed to state prison may be allowed to participate in a voluntary alternative custody program ... in lieu of confinement in state prison." SB 1266 § 2.2 More specifically, the ACP permits participants to be released from prison to live in a residential home, transitional care facility, or residential drug treatment program for up to the last twenty-four months of their prison sentences. Cal.Code Regs. tit. 15 §§ 3078.1(b), 3078.2(b). Each ACP participant is monitored by a CDCR agent and is also subject to electronic monitoring and searches. Id. § 3078.5.

As originally drafted, the ACP would have been open to all female prisoners, but only to males who were "primary caregivers" of dependent children. SB 1266 § 2(c). Legislative findings underlying the new law were as follows:

SB 1266 § 1 (lettering removed) (emphasis added).3

A March 2013 CDCR Fact Sheet also indicated that the purpose of the ACP is "reuniting low-level inmates with their families and reintegrating them back into their community." Decl. of Van Swearingen ("Swearingen Decl."), ECF No. 50-4, Ex. F, at 1. In addition, the Senate Committee on Public Safety made clear that "[t]he aim of [the ACP] [is] to lower recidivism rates, encourage community and family involvement, hold fewer children in Child Welfare System, and reduce the likelihood that an inmate's children will embark on a life of crime." D'Agostino Decl., ECF No. 18-6, Ex. F, at 11.

Defendants contend, however, that the purpose of the ACP is more specific — namely, to implement a gender-responsive program to "address women's unique pathways to criminality, and thereby, reduce recidivism." Defs.' Mot. Summ. J. ("Defs.' Mot."), ECF No. 51, at 1. According to Defendants' retained expert, Dr. Nena Messina,4 "women offenders have been receiving services and programs developed primarily for their male counterparts." Messina Expert Report ("Messina Report"), ECF No. 48-1, at 4. However, "[a] large body of consistent and replicated literature has shown that women offenders are low risk to public safety with complex needs that are better met in community settings." Id. at 5. As Dr. Messina explains: "Female crime rates, with few exceptions, are much lower than male crime rates," and "[w]omen's participation [in violent crime] is profoundly lower." Messina Report at 6. In support of her conclusions, Dr. Messina provides a number of other opinions with regard to the backgrounds and needs of female inmates.

For example, according to Dr. Messina, "[i]ncarcerated women are ... more likely than incarcerated men to report extensive histories of trauma, including emotional, physical, and sexual abuse as children, adolescents, and adults." Id. at 3 (internal citations omitted). "[W]omen report a higher degree of trauma and a higher impact of that trauma on their current posttraumatic stress disorder compared to ... men." D'Agostino Decl., Ex. B ("Messina Dep."), ECF 52-2, 144:15-18. "Although a male inmate can have all these problems, he is less likely to, and the problems tend to have a differential impact on women: women who experience childhood abuse and trauma become involved with crime significantly earlier than boys with similar histories, and girls without such histories." Defs.' Mot. at 4-5 (citing Messina Report at 5-6). In sum, according to Dr. Messina, women "are more likely to be dysfunctional" as a result of childhood abuse, mental illness, and poverty. Messina Dep. at 176:8-177:4.

Dr. Messina also avers that "[w]omen are less likely to be employed before or after incarceration, and are more likely to have primary caregiver responsibilities compared to men in all states." Defs.' Mot. at 5 (citing Messina Dep. at 71:2-7; D'Agostino Decl., Ex. A ("Messina Rebuttal"), ECF No. 52-1, at 1). "Reuniting with children has been shown to reduce the risk of recidivism for women, but not for men." Id. (citing Messina Report at 10; Messina Dep. at 24:5-11). She also indicates that there is purportedly a "very low likelihood that men will be primary caregivers of children and reunify with their children when they leave prison." Id. (citing Messina Dep. at 113:10-114:12).

Dr. Messina thus opines that, "[a]lthough family reunification is a strong predictor of success for female offenders, the same is not necessarily true for men: research demonstrates that primary predictors of criminal behavior for men include criminally active peers, extensive prior offending, and financial gain." Id. (citing Messina Dep. at 127:18-128: 7; Messina Report at 6). Similarly, according to Dr. Messina, "research shows that men of the same risk profiles as ACP-eligible women are still more likely to recidivate," and unlike men, "factors associated with women's post-release success are residing with children, strong family support, self-help participation, and specialized programs with services for women and children." Id. (citing Messina Dep. at 85:4-6, 86:2-88:2; Messina Report at 3). Finally, Dr. Messina testifies that "[w]omen have multiple social service needs that are not well met in prison." Id. at 5-6 (citing Messina Dep. at 25:1-10). She thus concludes that a "[g]ender-responsive policy and practice target women's pathways to criminality by providing effective interventions that address the intersecting issues of trauma, criminal behavior, substance abuse, mental health and economic marginality, as well as specific services" is needed. Messina Report at 5.

Regardless of the Legislature's precise intent, CDCR formally launched the ACP on September 12, 2011. See Swearingen Decl., Ex. C. At that time it was decided that, "[i]nitially, the program [would] be offered to qualifying female inmates. Participation may be offered at a later date to male inmates, at the discretion of the Secretary of CDCR." Id.

However, on June 27, 2012, Governor Brown signed Senate Bill No. 1021, which modified section 1170.05 to read: "[F]emale inmates sentenced to state prison for a determinate term of imprisonment pursuant to Section 1170, and only those persons, shall be eligible to participate in the alternative custody program authorized by this section." Cal.Penal Code § 1170.05(c) (emphasis added). Shortly thereafter, on September 13, 2012, CDCR issued a notice of approval of emergency regulatory action providing that "[t]o be eligible to participate in the Alternative Custody Program (ACP), the inmate must volunteer and be female." Cal.Code Regs. tit. 15 § 3078.2(a).5

Given the ACP's difference in treatment of male and female inmates, CDCR received a number of comments questioning whether the program impermissibly discriminates against men. See Swearingen Decl., Ex. E. Most significantly, the California Office of the Legislative Counsel issued statements warning the author of the bill and the Governor that "[i]n so far as this bill would create a program that provides for early release of women from prison custody to less restrictive confinement based on gender, the bill may be construed as violating the constitutional requirement of equal protection of law." Id., Ex. M. The regulations nonetheless became effective and limited ACP eligibility to female applicants. Cal.Code Regs. tit. 15, § 3078.2.

Even for female inmates otherwise satisfying the eligibility requirements, however, acceptance into the ACP is not guaranteed. The CDCR screens ACP applicants to evaluate whether a prisoner may participate in the Program. Cal.Code Regs. tit. 15 § 3078.4. A prisoner's predictive risk is assessed, and the CDCR prepares Individualized Treatment and Rehabilitation Plans ("ITRP") for each participant. Id. The goal in preparing the ITRP is to address the specific needs of each participant, with various factors being considered, including: "(A) Housing; (B) Employment plans; (C) Transportation; (D) Substance abuse treatment; (E) Parenting and life skills; (F) Anger management and criminal thinking; (G) Career Technical Education programs and educational needs; (H) Social services needs, e.g., Veteran's Affairs benefits, general assistance, social security; [and] (I) Medical, dental, and mental health needs." Id. The ITRPs themselves include goals such as: "receive [substance abuse] treatment," "obtain counseling," "seek and complete vocational training," and "seek employment." Swearingen Decl., Ex. Q. The ITRP is presented to an Institutional Classification Committee, who considers the inmate for placement in the ACP. Cal.Code Regs. tit. 15 § 3078.4.

Inmates chosen to participate in the ACP are supervised by a parole officer, who also acts as a case manager. Id., § 3078.5. "A key component of the ACP... is mandatory case management services," including at least one at-home inmate contact per month. Decl. of Jill Brown ("Brown Decl."), ECF No. 53, Ex. A, at 51, 71-72. Participating inmates are expected to comply with ITRP expectations and any special requirements set by the parole-agent/case-manager. Id. at 49, 71-72. As inmates progress through their plans, the case manager identifies further objectives. Id. at 50.

The CDCR also generates "Case Plans," which identify "goals, task and activities" for ACP participants. Swearingen Decl., Ex. P. Those Case Plans direct that participants should, for example, "address mental health needs," "stay clean and sober," "obtain an ID," "develop job skills," and "secure an income." Id. The Plans also identify programs and services available to ACP participants in their home communities, programs and services that are generally available to both genders. Id.

As indicated above, ACP participants may apply to serve their sentences in private homes, in private drug-treatment or transitional care facilities, or in a Female Offender Treatment and Employment Program ("FOTEP"). Cal.Penal Code § 1170.05; Messina Report at 4. Those offenders finishing out their sentences in their homes are still expected to "be involved in programs, services and/or employment." Brown Decl., Ex. A, at 52. The Case manager refers inmates living in private homes to services and programs and monitors the inmate's progress. Id. at 51-52, 71. Those participants released to drug-treatment or transitional care facilities should, depending on the facility, also have access to "gender-responsive specific groups and specific curricula for women." Messina Dep. at 24:12-21.

On June 3, 2013, Plaintiff applied to the ACP, requesting that he be allowed to finish his sentence in his home community of Sacramento. Decl. of William Sassman Decl. ("Sassman Decl."), ECF No. 50-7, ¶ 8, Ex. A. Plaintiff contends that, exclusive of his gender, he met and still meets all of the criteria required to be eligible to apply to the ACP. Id. ¶ 7. On June 19, 2013, however, a CDCR correctional counselor denied Plaintiff's application solely because he was male. Id. ¶ 8, Ex. A. Plaintiff appealed the denial of his ACP application through the third-level of review, and the CDCR denied the last appeal in December 2013. Id. ¶¶ 9-14, Exs. B-E. His appeal was ultimately rejected because "[s]tate law only allows female inmates to participate in the ACP." Id. at Ex. E. According to Defendants, male inmates may transition back into society via existing transition hubs instead. Defs.' Mot. at 8 (citing http://www.cdcr.ca.gov/ rehabilitation/reentry-hubs.html). Programs on substance abuse, criminal thinking, anger management, and family relationships are offered" in these hubs, and inmates may "obtain ID cards, academic degrees, and trade certifications." Id. Similar services are offered to parolees at Residential Multi-Service Centers. Id. at 9 (citing http://www.cdcr.ca.gov/ rehabilitation/residential-multi-service-center.html).

In the meantime, as of October 2014, 422 women have participated in the ACP, and there are currently 69 participants. Brown Decl. ¶ 3. "In 2014, the ACP had received 1,058 applications," but, "of those, only 118 inmates were accepted into the program." Decl. of Robin Harrington, ECF No. 65, ¶ 3. Of the approximately 117,805 male inmates in the California prison system, an estimated 3,149 male inmates could potentially be eligible for the ACP and that 500 men could probably be admitted. Swearingen Decl., ¶¶ 8-9, 22, Exs. G, H, U.

Upon denial of his appeal, on July 16, 2014, Plaintiff filed the instant action challenging the exclusion from men from the ACP (ECF No. 1) and a motion for preliminary injunctive relief (ECF No. 5). After considering Plaintiff's request for injunctive relief, the Court determined that Plaintiff had shown he was likely to succeed on the merits of his claims but denied his request due to Plaintiff's failure to show the requisite likelihood of irreparable harm.6 ECF No. 38. The Court set a shortened discovery and briefing schedule for the parties' Cross Motions for Summary Judgment, which are presently before the Court. Id.

STANDARD

The Federal Rules of Civil Procedure7 provide for summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). One of the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.

Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment. See Fed.R.Civ.P. 56(a) ("A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought."); see also Allstate Ins. Co. v. Madan, 889 F.Supp. 374, 378-79 (C.D.Cal.1995). The standard that applies to a motion for partial summary judgment is the same as that which applies to a motion for summary judgment. See Fed. R.Civ.P. 56(a); see also State of Cal., on Behalf of Cal. Dep't of Toxic Substances Control v. Campbell, 138 F.3d 772, 780 (9th Cir.1998) (applying summary judgment standard to motion for summary adjudication).

In a summary judgment motion, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion and identifying" the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

In attempting to establish the existence or non-existence of a genuine factual dispute, the party must support its assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavit or declarations ... or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R.Civ.P. 56(c)(1). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 355 (9th Cir.1992). The opposing party must also demonstrate that the dispute about a material fact "is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In other words, the judge needs to answer the preliminary question before the evidence is left to the jury of "not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Id. at 251, 106 S.Ct. 2505 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)). As the Supreme Court explained, "[w]hen the moving party has carried its burden under Rule [56(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Therefore, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Cities Service, 391 U.S. at 289, 88 S.Ct. 1575).

In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898 (9th Cir.1987).

ANALYSIS

Plaintiff contends that California's refusal to permit male inmates to apply to the ACP violates the Equal Protection Clause of the Fourteenth Amendment. In response, Defendants counter that the ACP was properly enacted to provide gender responsive programming only to women, who are an underserved subset of California's prison population. The Court is confident that the California Legislature acted with the best of intentions in establishing the ACP. However, by insisting that this is just a programming case, Defendants utterly fail to acknowledge Plaintiff's primary point. This case is not about programming. It is about freedom from incarceration. The line the State has drawn separates male offenders, who must remain inside of prison walls, from female offenders, who may apply to serve the last two years of their sentences in the community. The result is that ACP-eligible male inmates must by definition serve two additional years in a penal institution than they would potentially have to serve if they were female. And families of ACP-eligible male offenders must wait two additional years to start their reunification process than families of ACP-eligible females.

When the State draws a line between two classes of persons, and denies one of those classes a right as fundamental as physical freedom, that action survives equal protection review only if the State has a sufficient justification for the classification. Here, the State does not.

A. Prohibiting male inmates from applying to the ACP is unconstitutional.

The Equal Protection Clause "commands that no state shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)).8 State policies that expressly discriminate among applicants on the basis of gender are "subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment." Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). Just because a statutory policy "discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review." Id.

"[T]he party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an `exceedingly persuasive justification' for the classification." Id. at 724, 102 S.Ct. 3331 (quoting Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981)). "The burden is met only by showing at least that the classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'" Id. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980)).9 This test "must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions." Id. at 724-25, 102 S.Ct. 3331.

If a court finds that a State's objective is legitimate and important, the next step is to determine whether the discriminatory means are substantially related to the important governmental interest. Id. "The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women." Id. at 725-26, 102 S.Ct. 3331.

According to Plaintiff, he is entitled to judgment as a matter of law because he is similarly situated to female inmates that are eligible for the ACP, and the program's exclusion of men serves no important governmental objective. Pl.'s Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 50-1. Defendants contend, however, that the ACP survives constitutional scrutiny because it: "(1) serves the legitimate governmental objective of reducing recidivism for female offenders and ameliorating the disproportionate burdens they face in prison, particularly by treating the lasting effects of separation from their children, and trauma, abuse, and addiction; and (2) is substantially related to that objective because it provides gender-responsive programming tailored to female offenders' needs." Defs.' Mot. at 2. Defendants' arguments prove too much.10

As a threshold matter, there is no reason for the State to rely on gender as a proxy for need because the ACP already provides a highly individualized process to determine individual inmate qualifications. In any event, the State has not shown that gender is an accurate proxy here. Indeed, this case bears no similarity to those cases in which gender distinctions have been upheld. Moreover, the State has offered no persuasive explanation as to how excluding male offenders from the ACP furthers any of its objectives. Finally, the ACP's gender distinction fails for fundamental policy reasons as well. Accordingly, the refusal to permit male inmates to apply to the ACP is not substantially related to any governmental interest, and the arbitrary line the State has created between male and female inmates cannot stand.

1. Sex is an unnecessary proxy for need given the ACP's highly individualized application and case management system.

The Court could conclude that the ACP fails to pass constitutional muster under the case of Orr v. Orr alone. 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). In Orr, the Court considered "the constitutionality of [state] alimony statutes which provide[d] that husbands, but not wives, may be required to pay alimony upon divorce." Id. at 270, 99 S.Ct. 1102. Several objectives potentially motivated the Legislature to make that distinction. For example, the statutes could have been "designed for the wife of a broken marriage who need[ed] financial assistance," which raised the possibility of two legislative objectives: "One [was] a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other [was] a goal of compensating women for past discrimination during marriage, which assertedly ha[d] left them unprepared to fend for themselves in the working world following divorce." Id. at 280, 99 S.Ct. 1102. The Court reasoned, of course, that "assisting needy spouses is a legitimate and important governmental objective," as is "`[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women.'" Id. (quoting Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977)). Nonetheless, the problem presented in Orr, like that confronted by the Court here, was that the classification did not "substantially relate[] to achievement of those objectives." Id. (internal citations and quotations marks omitted).

More specifically, the alimony statutes scrutinized in Orr already contemplated "individualized hearings at which the parties' relative financial circumstances [were] considered." Id. at 281, 99 S.Ct. 1102. "There [was] no reason, therefore, to use sex as a proxy for need." Id. To the contrary, "[n]eedy males could be helped along with needy females with little if any additional burden on the State." Id. "`Thus, the gender-based distinction [was] gratuitous; without it, the statutory scheme would only provide benefits to those men who [were] in fact similarly situated to the women the statute aids,'... and the effort to help those women would not in any way be compromised." Id. (quoting Weinberger, 420 U.S. at 653, 95 S.Ct. 1225).

Exactly the same considerations apply here. Each individual applicant's eligibility for the ACP and her programming needs are determined on a case-by-case basis when she seeks admission to the Program. Since Defendants already look to the merits of each application to determine whether an individual may benefit from participation, there is no reason that applications from both males and females could not be reviewed. Accordingly, in this case as in Orr, "males could be helped along with ... females."

The importance of individualized inquiries can also be garnered from another analogous case, Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), in which the Supreme Court simultaneously emphasized the importance of both maternal and paternal relationships. Caban involved a challenge to a state law that distinguished between unwed mothers and unwed fathers with regard to their adoption rights. Id. at 381-82, 99 S.Ct. 1760. The New York adoption law at issue provided that consent to the adoption of minor children had to be given by the parents of children born in wedlock or the mothers of children born out of wedlock. Id. at 385, 99 S.Ct. 1760. That is, in most circumstances, "an unwed mother ha[d] the authority to block the adoption of her child simply by withholding consent," but "[t]he unwed father ha[d] no similar control over the fate of his child, even when his parental relationship [was] substantial," which was the case before the Court there. Id. at 386-87, 99 S.Ct. 1760. Instead, an unwed father was able to "prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child's adoption by the petitioning couple." Id. at 387, 99 S.Ct. 1760.

The appellees contended in Caban that "the distinction [was] justified by a fundamental difference between maternal and paternal relations — that a natural mother, absent special circumstances, bears a closer relationship with her child ... than a father does." Id. at 388, 99 S.Ct. 1760 (internal citations and quotations omitted). That rationale is markedly similar to California's justifications for a female only ACP in this case — that incarcerated fathers are less likely to reunify with children than incarcerated mothers. The Supreme Court rejected that argument for the obvious reason that "maternal and paternal roles are not invariably different in importance." Id. at 389, 99 S.Ct. 1760.

The Court finds Caban especially on point because the adoption scheme challenged there, like the statute in Orr, also provided for individualized hearings. Indeed, the Caban parties were even represented by counsel during the adoption proceedings before a hearing officer. Id. at 383, 99 S.Ct. 1760. The fact that the parties had access to hearings to present their cases as to the merits of an adoption petition seriously undermined any need the State might offer for imposing a bright-line gender distinction. Here too, the fact that the ACP is designed specifically to be an individualized program that by definition determines both inmate qualifications and programming needs undermines the State's decision to use gender as a proxy as well.

2. Even if the State needed to use gender as a proxy for need, its evidence supporting the distinction is insufficient.

a. The State impermissibly relies on overly-broad generalizations regarding the differences between men and women.

In attempting to nonetheless justify its bright gender line, the State primarily relies on the report and testimony of its expert, Dr. Messina, in arguing that: (1) "[A] large body of research and literature shows that female offenders are a low risk to public safety with complex needs that are better met in the community"; (2) "[I]ncarcerated women are more likely than incarcerated men to report extensive histories of trauma, including emotional, physical, and sexual abuse as children, adolescents, and adults"; (3) "[F]emale offenders report a higher degree of trauma and a higher impact of that trauma when compared to men"; (4) "Although a male inmate can have all these problems, he is less likely to, and these problems tend to have a differential impact on women"; (5) "[W]omen are more likely to be dysfunctional as a result of childhood abuse, mental illness, and poverty"; (6) "Women are less likely to be employed before or after incarceration, and are more likely to have primary caregiver responsibilities compared to men in all states"; (7) "[R]euniting with children has been shown to reduce the risk of recidivism for women, but not for men"; (8) "[T]he legislature found that women are far less violent than male offenders; (9) "[W]omen's participation in violent crime is "profoundly lower" than men's"; (10) "There is ... a very low likelihood that men will be primary caregivers of children and will reunify with their children when they leave prison"; and (11) "Although family reunification is a strong predictor of success for female offenders, the same is not necessarily true for men." Defs.' Mot. at 4-5 (internal citations and quotation marks omitted) (emphasis added). Cataloguing these arguments in this way makes it glaringly obvious that the State impermissibly relies solely on "likelihoods" and "tendencies" to support its legislation. In this regard, the instant case is similar to United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996).

In Virginia, female applicants sued the Commonwealth and its Virginia Military Institute ("VMI") arguing that VMI's "exclusively male admissions policy violated the Equal Protection Clause." Id. at 523, 116 S.Ct. 2264. Expert witness testimony indicated, however, that "coeducation would materially affect at least ... three aspects of VMI's program — physical training, the absence of privacy, and the adversative approach." Id. at 540, 116 S.Ct. 2264 (internal citations and quotations omitted). The district court agreed and rejected the plaintiffs' equal protection arguments after making "findings" on "gender-based developmental differences." Id. at 541, 116 S.Ct. 2264 (citations omitted).

The Supreme Court reversed, in part because the district court's findings simply "restate[d] the opinions of Virginia's expert witnesses, opinions about typically male or typically female `tendencies.'" Id. (citations omitted). For example, the district court determined that "[m]ales tend to need an atmosphere of adversativeness, while [f]emales tend to thrive in a cooperative atmosphere." Id. (citation and internal quotations omitted). Such "[g]eneralizations and tendencies" are subject to a hard look, however, because "[s]tate actors controlling gates to opportunity ... may not exclude qualified individuals based on `fixed notions concerning the roles and abilities of males and females.'" Id. (citations omitted). This case is no different; given the highly individualized nature of the ACP, there is simply no reason to resort to generalities rather than to review the facts presented by each particular scenario.

Moreover, whether such generalized "findings" as to male or female "tendencies" are accurate does not matter. Id. at 542, 116 S.Ct. 2264. Here, although most men might not qualify for the ACP, a conclusion to that effect nonetheless cannot be drawn by way of sweeping generalization. Significantly, while the Supreme Court assumed in Virginia that most women would not choose VMI's "adversative method,"11 such a determination was nevertheless not a "one size fits all business." Id. To the contrary, it was clear in Virginia that "the VMI methodology could be used to educate women." Id. (internal citations and quotation marks omitted). "[S]ome women, at least would want to attend [VMI] if they had the opportunity[,] ... [would be] capable of all of the individual activities required of VMI cadets." Id. at 550, 116 S.Ct. 2264 (internal citations and quotation marks omitted). "In sum,... neither the goal of producing citizen soldiers ... nor VMI's implementing methodology [was] inherently unsuitable to women." Id. at 541, 116 S.Ct. 2264 (internal citations and quotations omitted). Ultimately, the issue in Virginia was not "whether `women — or men — should be forced to attend VMI'; rather, the question [was] whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords." Id. (internal citations omitted).

The State does not deny here that, as in Virginia, some men may qualify and benefit from the ACP. See Defs.' Mot. at 15 ("Plaintiff has argued that some male inmates could benefit from many of the programs offered under the ACP. Even if true, that is of no moment."). Indeed, Plaintiff himself has provided evidence demonstrating that he has a significant relationship with his children such that he and his family would benefit from the opportunity to reconnect and work on their relationships sooner rather than later. The Court has been provided no reason to doubt that Plaintiff will actually reunify with his family or to find that Plaintiff may recidivate even despite being given the opportunity to do so. Accordingly, as in Virginia, the State's generalizations are insufficient to convince this Court it can deny all those who have the "will and capacity" and would otherwise qualify, "the attendant opportunities that [the ACP] uniquely affords."

b. Even if the State's empirical evidence went beyond generalizations, it is inapplicable here because Defendants do not address the correct inmate populations.

Even if Defendants' statistical evidence was more persuasive, it still fails to support the distinction made regarding the ACP because it focuses on inmate populations as a whole, not those inmates that are ACP-eligible. Defendants compare all male offenders to all female offenders. But ACP applicants stand on a different footing from other inmates since they must meet the gender-neutral exclusionary criteria that eliminate most of the population from consideration.12

For example, to be eligible an applicant must not have sustained a conviction for a violent or serious felony, and must not have been convicted of crimes that would require them to register as a sex offender. They should also have been screened to determine that they do not pose a high risk of committing a violent offense. The fact that the ACP application process operates to screen out violent offenders makes any reliance on the violent tendencies of the general prison population nonsensical. Furthermore, nothing before the Court indicates the other generalizations made about inmate populations are any more applicable to the ACP-eligible subclass.

To the contrary, it defies logic to think that the system-wide statistics on which Defendants rely have any correlation to the relatively minute subset of men who may be eligible for the ACP. Defendants' own evidence indicates that, out of the thousands of male inmates in the California system, only approximately 3,149 are potentially eligible for the ACP. Even more striking, only about 500 of that subset would likely be admitted to the Program. Defendants offer no evidence that generalizations made with regard to the entire California prison population are in any way indicative of the characteristics of the small fraction of inmates who may actually be accepted to the ACP. See generally Craig v. Boren, 429 U.S. 190, 199-204, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ("[T]his merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause."). Defendants' overly broad empirical evidence simply has no bearing on the narrow question before the Court.

3. Statistical problems aside, this case is fundamentally different from those where the Supreme Court has approved using gender as a proxy for need.

Even if the Defendants' statistical evidence was flawless, the ACP would still fail constitutional review. Indeed, Defendants have not identified any case where gender was permitted to act as a surrogate for need in situations such as this. To the contrary, the cases on which Defendants rely are clearly distinguishable. For example, in Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), and Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), the Court upheld statutory distinctions put in place because all females were categorically precluded from some types of military service, namely serving in combat roles. Those cases were much different from this one because, as a matter of law, no woman was similarly situated to any man. Here, there may be many male inmates who are similarly situated to female inmates, despite the fact that female inmates may nonetheless be "more likely" to qualify for the ACP.

More specifically, in Schlesinger, the Court rejected a challenge to differing mandatory discharge rules for male and female naval officers. Female officers were not subject to mandatory discharge until being passed over for promotion after thirteen years of service. 419 U.S. at 505-06, 95 S.Ct. 572. Male officers, on the other hand, were subject to mandatory discharge after failing to promote twice and having served less time as a commissioned officer (i.e., nine years). 419 U.S. at 499, 503, 95 S.Ct. 572. The Court upheld that distinction, explaining that "the different treatment of men and women naval officers ... reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service." Id. at 508, 95 S.Ct. 572. "Specifically women [could] not be assigned to duty in aircraft that [were] engaged in combat missions nor [could] they be assigned to duty on vessels of the Navy other than hospital ships and transports." Id. (internal citations and quotation marks omitted). Accordingly, opportunities to acquire service records comparable to men were more limited for women. Id. Congress could therefore rationally have concluded that a longer tenure period for female officers would help provide "fair and equitable career advancement programs." Id. (internal citations and quotation marks omitted). Indeed, this made even more sense when "underscored by the fact that in corps where male and female lieutenants [were] similarly situated, Congress ha[d] not differentiated between them with respect to tenure." Id. at 509, 95 S.Ct. 572.

Similarly, in Rostker, the Supreme Court upheld the constitutionality of the President's power to require only males to register under the Military Selective Services Act. 453 U.S. at 59, 83, 101 S.Ct. 2646. The purpose of the registration requirement was to meet the need for combat troops that would characterize any future draft. Id. at 76, 101 S.Ct. 2646. As in Schlesinger, however, women were categorically ineligible for combat. Id. Accordingly, no purpose would have been served by requiring women to register alongside men. Id. at 79, 101 S.Ct. 2646. Again, "[m]en and women, because of the combat restrictions on women, [were] simply not similarly situated for purposes of a draft or registration for a draft." Id. at 78, 101 S.Ct. 2646.13

Schlesinger and Rostker stand in stark contrast to the instant case. In those cases, males and females stood on entirely different footing because females as a class were precluded from serving in particular roles. There was no question that men and women were not similarly situated. In this case, to the contrary, male and female ACP applicants that meet the gender-neutral exclusionary criteria are similarly situated. Any attempt to reach a different result by comparing male applicants to some hypothetical female applicant with children and special social service needs is improper. Some men may not have children. Neither may some women. Some men may not have histories of trauma or abuse. Neither may some women. Accordingly, these cases provide Defendants little support.14

The cases of Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), and Nguyen v. I.N.S., 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001), are also not helpful to Defendants for essentially the same reason. In Michael M., the question was whether California's statutory rape law, which made only men criminally liable, was constitutional. Id. at 466, 101 S.Ct. 1200. "The justification for the statute... [was] that the legislature sought to prevent illegitimate teenage pregnancies." Id. at 470, 101 S.Ct. 1200. Accordingly, because "the risk of pregnancy itself constitute[d] a substantial deterrence to young females," the Court reasoned that "[a] criminal sanction imposed solely on males thus serve[d] to roughly `equalize' the deterrents on the sexes." Id. at 473, 101 S.Ct. 1200. The Court's decision therefore turned on the fact that only women can bear children and thus only women run the risk of pregnancy as a result of intercourse. See id. at 467-471, 101 S.Ct. 1200.

Similarly, in Nguyen, the Court considered the constitutionality of a statute that pertained to the citizenship of children born outside the United States to unmarried couples where one parent is an American citizen and one parent is a non-citizen. Under the statute, the citizenship of the child depended on whether the mother or the father was the United States citizen. 533 U.S. at 56-57, 121 S.Ct. 2053. The Court found the distinction in treatment was justified by two important governmental objectives: (1) "the importance of assuring that a biological parent-child relationship exists"; and (2) "the determination to ensure that the child and the citizen parent have some demonstrated opportunity or potential to develop not just a relationship that is recognized, as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States." Id. at 62, 64-65, 121 S.Ct. 2053.

As to the first interest, the difference in treatment was justified because the biological relationship could be verified as to a mother by the event of birth itself since the mother's status "is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth." Id. at 62, 121 S.Ct. 2053. Verification of the paternal relationship, on the other hand, required additional substantiation. Id. at 62-63, 121 S.Ct. 2053.

The second justification also turned on child-bearing ability:

Id. at 65, 121 S.Ct. 2053.

Accordingly, as with Schlesinger and Rostker, where all women were subject to service limitations, Michael M. and Nguyen both turned on the fact that only women are capable of bearing children. No male and female is similarly situated in that regard, rendering the connection between the challenged statutes and the governmental interests much closer. In this case, where female offenders are simply "more likely" to qualify for or benefit from the ACP, the fit is insubstantial and falls far short of being "exceedingly persuasive."

Finally, Defendants' reliance on Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), and Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977), is also misplaced. In Kahn, the Court upheld a state law providing widows, but not widowers, with a $500 tax exemption. 416 U.S. at 352, 94 S.Ct. 1734. According to the Court, "[t]here can be no dispute that the financial difficulties confronting the lone woman ... exceed those facing the man." Id. at 353, 94 S.Ct. 1734. "Whether from overt discrimination or from the socialization process of a male-dominated culture, the job market is inhospitable to the woman seeking any but the lowest paid jobs." Id. When Kahn was decided, the median income for female workers was significantly lower and "[w]hile the widower [could] usually continue in the occupation which preceded his spouse's death, in many cases the widow [would] find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she [would] have fewer skills to offer." Id. at 354, 94 S.Ct. 1734. The Court thus concluded that "[t]here can be no doubt, therefore, that [the State's] differing treatment of widows and widowers `rest[ed] upon some ground of difference having a fair and substantial relation to the object of the legislation.'" Id. at 355, 94 S.Ct. 1734 (quoting Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971)).

Webster dealt with a similar challenge to a Social Security Act provision that "result[ed] in a slightly higher `average monthly wage' and a correspondingly higher level of monthly old-age benefits for the retired female wage earner." 430 U.S. at 316, 97 S.Ct. 1192. The Court explained: "Reduction of the disparity in economic condition between men and women caused by the long history of discrimination against women has been recognized as ... an important governmental objective." Id. at 317, 97 S.Ct. 1192. That statute "operated directly to compensate women for past economic discrimination." Id. at 318, 97 S.Ct. 1192. Accordingly, "allowing women, who ... have been unfairly hindered from earning as much as men, to eliminate additional low-earning years from the calculation of their retirement benefits work[ed] directly to remedy some part of the effect of past discrimination." Id.

Kahn and Webster differ from the instant matter because in those cases the Supreme Court recognized the historically arduous journey women had undergone to gain traction as breadwinners in the workforce.15 This struggle to break into the workplace likely affected all women, even if some did successfully enter the work force and were able to advance. There was also no evidence in either case that any men had suffered the same sort of discrimination as women. Accordingly, Kahn and Webster are much more on par with the cases regarding service limitations and biological differences than the instant case, where even the State appears to concede that some men could benefit from the ACP.16

4. Excluding men from the ACP is not substantially related to the State's interests.

On a fundamental basis, the most troubling aspect of the State's arguments is that, even if the ACP is a superior method of approaching recidivism and social issues for some women, and even though the State has offered ample justification for providing the program to female offenders, the State still has not offered any rational explanation for excluding men. For the State's action to survive equal protection review, there must be some direct or indirect justification for excluding a particular class. None have been shown here.

First, nothing before the Court indicates that permitting men to apply to the ACP will have any direct impact on female applicants. The State has not argued, for example, that there is limited availability within the program such that admitting men will displace women. See, e.g., Clark By & Through Clark v. Ariz. Interscholastic Ass'n, 886 F.2d 1191 (9th Cir.1989) (goal of increasing athletic opportunities for women would be undermined if males were permitted to displace females on female interscholastic athletics teams). Certainly, Defendants have not shown that permitting men to apply to the ACP will directly affect female applicants at all.

Nor have Defendants shown any indirect way that female offenders will be impacted by admission of male offenders to the ACP. This type of showing is typically made in cases where the government has legislated in an attempt to ameliorate the effects of past discrimination or lack of equal opportunities. See, e.g., Schlesinger, 419 U.S. 498, 95 S.Ct. 572; Rostker, 453 U.S. 57, 101 S.Ct. 2646; Kahn, 416 U.S. 351, 94 S.Ct. 1734; Webster, 430 U.S. 313, 97 S.Ct. 1192. In every case where a gender distinction has been upheld, not only was there some reason to treat one gender more favorably, but there was also a related reason to treat the other gender unfavorably. Stated another way, the statutes were put in place because one gender had historically enjoyed an advantage at the expense of the other such that there was a valid compensatory justification for leveling the playing field. See Hogan, 458 U.S. at 730, 102 S.Ct. 3331 (finding a "policy ... invalid ... because... the State ha[d] made no showing that the gender-based classification [was] substantially and directly related to its proposed compensatory objective."). Given that compensatory objective, a gender-neutral statute would have eviscerated the government's objectives.

For example, in Schlesinger, female naval officers were subject to more lenient mandatory discharge provisions to compensate them for the fact that male officers had more advancement opportunities. 419 U.S. at 508, 95 S.Ct. 572. The differential treatment was intended to provide "fair and equitable career advancement programs." Id. (citations omitted). The very purpose of the scheme was to level the playing field for male and female officers, and permitting males to utilize the more preferential mandatory discharge provisions as well would have undermined the distinction completely.

Similarly, in Kahn and Webster, the purpose of the tax and social security preferences for females was to compensate them for disadvantages they had suffered as a result of systemic hostility to women in the workplace. 416 U.S. at 353-55, 94 S.Ct. 1734, 430 U.S. at 318-20, 97 S.Ct. 1192. Again, the legislative intent was to compensate females for the fact that males historically had more career opportunities and higher wages than women. The goal was to take steps to level the playing field, and permitting males to benefit from the same preferences would have mooted that legislative objective.

This case is different because no showing has been made either that female offenders have suffered some sort of systemic disadvantage with regard to timely release or that male offenders somehow benefitted at their expense. In this regard, the instant case is more like Hogan than the above cases on which Defendants rely. In Hogan, the Court recognized that "[i]n limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened." 458 U.S. at 728, 102 S.Ct. 3331 (citations omitted). However, "a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification." Id. In that case, male applicants denied admission to a female-only nursing school were granted relief because the State made no showing that "women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field." Id. at 729, 102 S.Ct. 3331. Accordingly, "although the State recited a `benign, compensatory purpose,' it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification." Id. at 730, 102 S.Ct. 3331. The "policy [was] invalid ... because ... the State ha[d] made no showing that the gender-based classification [was] substantially and directly related to its proposed compensatory objective." Id.

Hogan is directly on point. Here, there has been no showing that male offenders have previously been given opportunities for release or programming that female offenders have not, such that some sort of compensatory system is needed to level the playing field.17 Moreover, there has been no showing made that to "compensate" female offenders, males must be excluded from the ACP. In the present case, on the other hand, female offenders will fully reap the benefits of the ACP even if male inmates are also permitted to apply. As in Hogan, where permitting men to attend classes had no impact on the female students' educational experience, here there is also no indication in the record that female offenders will be at all affected by the presence of male inmates in the ACP. In Hogan, the State was unable to show that permitting men to attend the school would interfere with the State's goal. Id. at 731, 102 S.Ct. 3331. Similarly, here the State has articulated no reason why permitting men to apply to the ACP will prevent the State from continuing to address the programming needs and recidivism issues of female inmates.

Moreover, not only has the State failed to provide a sufficient justification for excluding men, but the "use of a gender classification actually produces perverse results in this case." Orr, 440 U.S. at 282, 99 S.Ct. 1102. In Orr, where husbands but not wives were required to pay alimony, "[the state] statutes [gave] an advantage only to the financially secure wife whose husband [was] in need." Id. This is because, "[a]lthough such a wife might have to pay alimony under a gender-neutral statute, the present statutes exempt[ed] her from that obligation." Id. "Thus, `[t]he [wives] who benefitt[ed] from the disparate treatment [were] those who were ... nondependent on their husbands.'" Id. (internal citations omitted). "They are precisely those who are not needy spouses and who are least likely to have been victims of ... discrimination by the institution of marriage." Id. (internal citations and quotation marks omitted). "A gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny." Id. at 282-83, 99 S.Ct. 1102.

Here, assuming the Legislature intended the ACP to ameliorate the undue burdens female inmates have suffered from disproportionate histories of trauma and parenting responsibilities, its disparate treatment of male and female offenders benefits only "those it has no reason to prefer." Because female applicants need not make any showing that they are in fact caregivers or that they have suffered from any kind of trauma, the individuals who unfairly benefit are the women who are not mothers or caregivers and who have no history of any trauma or abuse.18 Accordingly, those women, who may have little use for services, may still apply even though a male offender who may be a caregiver or be able to demonstrate a great need of social services cannot.

The disparate impact of the ACP's gender distinction does not end there. Caban serves to further demonstrate how far-reaching the harms from drawing such an arbitrary line can be. In Caban, even if children of an unwed father had a substantial relationship with him, they could be adopted by another man without their father's consent. 441 U.S. at 385-87, 99 S.Ct. 1760. In short, children could have the only father they had known taken from them over their objection and his.

The results here are just as harsh. Based solely on gender distinctions, children of incarcerated mothers may have their mothers returned to them sooner. Children of male offenders, and the mothers and step-mothers Defendants contend are caring for these children while their fathers are incarcerated, must wait.19 Children of these men must go two more years without a real chance to repair the parent-child relationship. The children's caretakers, already shouldering the burden of raising children on their own, must wait two additional years before their partner can reintegrate into their children's lives and provide these caretakers with support.

The State offers no sufficient justification for its gender-based differential treatment of children and their caretakers. Indeed, nothing before the Court is so compelling that it can justify keeping fathers but not mothers from their children. To the contrary, the legislative history makes clear that the well-being of children of inmates was a primary concern.20 Given the legislative findings, it seems incredibly counter-productive to permit reunification for the children of female offenders and to ignore the same needs of children of male offenders. Additionally, there is no reason that the Court can see to shoulder the caretakers of the children of male prisoners with a greater burden than is put on the caretakers caring for the children of female inmates.21

5. The State's gender line also fails for fundamental policy reasons.

Finally, from this Court's perspective, the ACP's gender distinction and the State's defense of that line seriously undermines some of the most basic precepts of our criminal system; namely, that each defendant, regardless of gender, is a unique individual responsible for his or her own actions. Treating based solely on their gender invidiously contributes to the misconception that inmates lack intrinsic worth as individual human beings.

This Court is no stranger to criminal proceedings, having presided over both state and federal criminal cases for nearly twenty years and managing a heavy criminal caseload to this day. Every offender has his or her own story and is treated as an individual based on his or her background and circumstances, his or her infractions, his or her attitude and acceptance of responsibility, and his or her choices. This Court has sentenced female offenders who stand in stark contrast to those described by Defendants: women who were highly educated and professional, with no histories of abuse, but who simply made poor decisions. So too, the Court has sentenced men who, by all accounts, were doting and involved fathers, men who had been subjected to horrendous abuse, and men who, with help, will likely never set foot in a criminal courtroom again. It goes without saying that this Court would be breaching its sworn duty to uphold the Constitution if it determined, without regard to any of those factors, that its sentences for male offenders should be two years longer than the sentences it would normally impose as for females.

More fundamentally, though, adopting Defendants' argument, would stigmatize, although in different ways, every criminal defendant that appears before the Court. The Court would have to treat female defendants as a class as victims, at least partly powerless over their situations, patronizing them with more lenient sentences intended to compensate them for their perceived inferiority with respect to their ability to overcome their particular circumstances. It would have to categorically view male defendants as dangerous and aggressive, with no real regard for their families, punishing them for their perceived inferiority with respect to the potential for rehabilitation and family reunification. In competing ways, members of each gender would be cast as innately inferior to the other. Certainly there is no place for this type of stereotyping in criminal sentencings, and the Court sees no principled reason why the State should be allowed to employ these stereotypes when evaluating offenders for release. The State cannot use gender as a basis to grant or deny its citizens their freedom.

B. The provision excluding men from applying to the ACP must be stricken.

Having determined the ACP's gender distinction is unconstitutional, the Court must now determine the appropriate remedy. Defendants argue that "[i]f this Court determines the ACP, as presently implemented, is unconstitutional, the Court cannot simply remove the term `female' from the statute." Defs.' Mot. at 16. According to Defendants, such action would be contrary to the legislative intent because the Legislature never meant to create an alternative custody program for all men. See id. In addition, Defendants contend that even though the statute includes a severability clause, the legislature did not consider that clause when it amended the statute to apply only to female offenders and thus did not intend that the severability clause would apply to the amended statute. Id. at 16-17 (citing Cal.Penal Code § 1170.05 ("If a phrase, clause, sentence, or provision of this section or application thereof to a person or circumstance is held invalid, that invalidity shall not affect any other phrase, clause, sentence, or provision or application of this section, which can be given effect without the invalid phrase, clause, sentence, or provision or application and to this end the provisions of this section are declared to be severable.")). Defendants' arguments are not well taken.

In equal protection cases, the Court has two choices: "[It] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion." Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in the result). "Although the choice between extension and nullification is within the constitutional competence of a federal district court, and ordinarily extension, rather than nullification, is the proper course, the court should not, of course, use its remedial powers to circumvent the intent of the Legislature and should therefore measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation." Heckler v. Mathews, 465 U.S. 728, 739 n. 5, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (internal citations and quotation marks omitted).

Expansion of the ACP is consistent with Senate Bill No. 1266's findings that support the reunification of fathers with children and of parenting and family reunification more generally. See, e.g., § 1(g)-(h). This remedy is also consistent with section 1170.05's severability clause, requiring that a severed, invalid provision "shall not affect" application of the rest of the statute. See Cal.Penal Code § 1170.05(p). The Court has no doubt that the California Legislature anticipated this decision, especially since it chose to leave the statutory severance provision intact. Even more importantly, however, is the fact that nullifying the ACP in its entirety would disrupt the reunification process by removing all current female ACP participants from their families and communities and returning them to prison. See Califano v. Westcott, 443 U.S. 76, 90, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (finding that where district court chose extension of welfare benefits to previously excluded class, "equitable considerations surely support its choice" given that "an injunction suspending the program's operation would impose hardship on beneficiaries whom Congress plainly meant to protect"); Wauchope v. Dept. of State, 985 F.2d 1407, 1417 (9th Cir.1993) ("No one has suggested here that [the defect] be remedied by invalidating the statute, thereby stripping citizenship from the foreign-born offspring of male citizens"). The appropriate solution here is to open the ACP to qualifying male inmates rather than nullify its provisions altogether.

CONCLUSION

California's decision to open an alternative custody program to female inmates only and to permit them to apply for release up to two years prior to their earliest possible release date violates the Equal Protection Clause of Fourteenth Amendment to the United States Constitution. Accordingly, for all of the reasons stated above, Defendants' Motion for Summary Judgment (ECF No. 51) is DENIED, and Plaintiff's Motion for Summary Judgment (ECF No. 50) is GRANTED. The Motions to Strike filed by both sides (ECF Nos. 56, 60) are DENIED as well.

Defendants are hereby enjoined and prohibited from applying and/or enforcing the female-only provisions of California Penal Code § 1170.05(a) and (c) in the implementation and administration of the ACP. CDCR shall immediately cease denying admission to the ACP on the basis that an applicant is male. Male prisoners shall be accepted into the ACP if they are otherwise eligible under Penal Code section 1170.05 and the implementing regulations. Within thirty (30) calendar days of the electronic filing of this Order, CDCR shall modify its website and any application forms, regulations, and materials provided to prisoners and the public about the ACP to remove any reference to the requirement that a prisoner must be female to apply or participate. This Order shall apply to Defendants, their agents, employees, successors in office, and all persons with knowledge of it. No person who has notice of this injunction shall fail to comply with it, nor shall any person subvert the injunction by any sham, indirection, or other artifice. The Court retains jurisdiction to enforce the terms of this injunction.

IT IS SO ORDERED.