San Diego Historian, Playwright and Actor Sues County Library for Race Discrimination

Men are encouraged to call themselves women these days. But it seems a different set of rules on transitions applies when a white person tries to assume the role of a black person even for artistic purposes.

San Diego native Annette Hubbell, a playwright and actress who performs one woman shows as different historical figures, is suing the San Diego County Library System and San Diego County for race discrimination because they would not let her play black women because she is white.

But in court papers, San Diego is essentially arguing their racial purity scheme is actually permissible government speech because it conveys their preferred message of racial exclusivity.

Hubbell is being represented by the Sacramento-based Pacific Legal Foundation. The lawsuit was filed earlier this year in the United States District Court for the Southern District of California.   The lawsuit charges that the Library and San Diego County violated the 1964 Civil Rights Act prohibition on race discrimination by federally funded programs and also the federal law 42 U.S.C. § 1981 that prohibits denying somebody a contract based on his race.   It also says San Diego ran afoul of the California Constitution prohibition against race discrimination in public contracting.

Pacific Legal Foundation lawyer Andrew Quinio told the California Globe that, “I think the most important principle in this case is that the government can not treat its citizens unequally based on their race or skin color and that applies to local government as well. Annette was performing a play that depicted important historical figures in a way that was historically accurate,  sensitive and entertaining. The County diminished her ability to provide this performance simply because of her skin color. Their decision had nothing to do with the performance being offensive or inappropriate. They just didn’t want someone of the wrong skin color to portray these historical figures and the government can’t do that. “

The lawsuit says that, “It is unfair and unjust for the government to treat individuals differently on the basis of race. The government should never deny an individual opportunities—including the opportunity to pay tribute to American heroes and heroines—because of the color of his or her skin. The San Diego County Library’s blatant racial discrimination is both illegal and unconstitutional under state and federal law. Because San Diego County cancelled Annette’s performance due to her race, the County violated her right to equal treatment and equal protection under the law. Annette brings this action to vindicate her constitutional and statutory rights.”

It argues that the Library’s insistence on racial purity is an affront to the American Way.

“The stories of America’s great historical figures are part of our shared national heritage. Annette believes that passing that heritage down through storytelling must be done without regard for the race or color of the storyteller or the figures they portray. To do otherwise would risk our shared humanity and common understanding that elevates the content of one’s character over the color of one’s skin. The San Diego County Library disagrees. It chose to gatekeep our shared national heritage on the basis of race. “

Hubbell’s  performances are  based on historical characters’ own words. The performances are derived from her book,  Eternity through the Rearview Mirror: How Simple Faith Changes Everything—Seventeen Extraordinary Lives.

Her show is called “Women Warriors.” Since 2009, she has done more than 400 performances in theaters, schools and libraries and club meetings.  She has portrayed the Puritan poet Anne Bradstreet, Irish Christian missionary Amy Carmichael, black abolitionist Harriet Tubman and others. Until her encounter with the San Diego Library System nobody objected to her playing black characters.

According to the lawsuit, in March 2023, she signed a contract with San Diego Country to perform her show at any or all of San Diego’s branch libraries.  She was given complete independence and the County “agreed not to control or direct Annette’s performance. “

In December 2023, Rancho Santa Fe Library Branch Manager Christina Patterson asked Hubbell to perform Women Warriors at the Rancho Santa Fe branch. Patterson asked her to perform as the black abolitionist Harriet Tubman, the black educator Mary McLeod Bethune and white novelist Harriet Beacher Stowe.

The performance was supposed to take place on March 21, 2024.

But on March 6, Patterson told her she was too pale for the black roles.

The lawsuit says Patterson  “requested that Annette change her performance and refrain from portraying the two African American figures, Tubman and Bethune. The reason Ms. Patterson gave was that “our administration was uncomfortable with you performing a black character as a white woman.” She asked Annette to replace Bethune and Tubman with white figures.’’

But Hubbell refused to play only whites so the library cancelled her performance.  The decision was affirmed by the San Diego Library director and San Diego County’’s “Diversity and Inclusion Council, which is made up of representatives from different county agencies.

The lawsuit quotes Hubbell as being aghast that the Library’s discrimination could crimp artistic expression.

“Even though Annette portrays diverse historic figures with dignity, decency, and respect, she is concerned about what SDCL’s abrupt cancellation of her performance might imply to audiences and hosts of other venues. Annette also worries that if SDCL’s discrimination is permitted to persist, it will normalize government restrictions on actors and performers based on race, unfairly hindering artistic expression and opportunity. It is likely that Annette will receive fewer requests to perform as a result of SDCL’s actions. Annette is “taken aback” and “mystified” by SDCL’s conduct, stating, “In the five years of performing these characters, there has never been a hint of offense, even from anonymous surveys. And why should there be? How could we ever explore our common humanity with these kinds of restrictions?” She continues to agree with Mary McLeod Bethune, that “Our aim must be to create a world of fellowship and justice where no man’s skin, color or religion, is held against him.”

Hubbell told the California Globe that her performances transcend race.

“In my one-woman play, I portray women of courage and valor. These women are not black historical figures,” she emailed. “They are historical figures who are also black, and that’s where the emphasis should be. Ordinary women, they became extraordinary because of how they met life’s challenges, and we can learn from them. Each of these portrayals are in approximately 15-minute segments, serving to acknowledge their role in our collective efforts to move forward with kindness and love for others.”

“I have been criticized, again through social media, because I could never understand how a black woman could feel. But let me ask you, does a black actress of today have to have physically experience the depths of what black women experienced in the 1800 and early 1900s? Should I be criticized for portraying say, Corrie Ten Boom, because I did not survive a concentration camp (or a prison) like she did? To have white skin as the criteria for honoring individuals would be discriminatory. I am an actress, and that’s what actresses do – they act.”

“I’d like to note that my most ardent supporters are black women who, after seeing a performance, thank me for reintroducing these wonderful women back into the public eye. After this library debacle, I asked women of color if they are bothered by my skin color, and they respond with a puzzled look. Of course not, it’s the message that’s important, is often the reply. And besides, they add, you disappear.”

San Diego County filed a motion to dismiss the lawsuit on May 28. It argued that Hubbell’s performance is actually government speech that they have the right to control.

And they just don’t want to hear from whitey!

“Defendants claim only the very limited speech right for the Library not to be required to put on an inherently expressive dramatic performance in which a white woman would portray one or more Black women to Library customers. In the scheme of things, this is not a very ambitious right to claim! Defendants do not claim any broader right to break contracts with businesses owned by white people (or by people of any race) or any broader right to physically close the Library to white customers (or to customers of any race). Defendants claim only the right not to express a particular unintended message that they do not wish to express that would be “inescapably interwoven” into any performance in which a white woman would speak in the first-person perspective as a Black woman.”

The County also argued that its putative free speech rights should trump laws against discrimination. “Coercing the Library’s speech through the application of anti-discrimination laws to the inherently expressive Library production alleged in this case would inevitably weaken the Library’s ability to function and pursue its missions.”

To buttress their argument that choosing who can perform is within their right to determine the library’s messaging, San Diego cited a 2003 Supreme Court decision that said “public libraries must have discretion to decide what information to provide to their customers,”

Interestingly, San Diego does not give any reason why a white woman should not play a black woman. They simply assert the right to make this decision as some kind of presumed natural order. “The Library’s speech right to make this kind of casting and storytelling decision is fundamental to its purpose in the community.”

So instead of just trying to settle the lawsuit somehow, San Diego is blithely arguing that the government has the right to discriminate based on race and bestow privileges on members of favored races that people with the wrong skin color don’t get. This sounds eerily similar to the kind of arguments segregationists made in the heyday of the Jim Crow South.

San Diego County spokeswoman Tammy Glenn did not respond to a request for comment.