BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
AB 196 A
Assembly Member Leno B
As Amended March 26, 2003
Hearing Date: June 17, 2003 1
Government Code 9
GMO:rm 6
SUBJECT
Gender Discrimination
DESCRIPTION
This bill would import the definition of "gender" from hate
crimes statutes that prohibit violence against any person
on the grounds of gender or perceived gender into the Fair
Employment and Housing Act (FEHA), thereby extending the
FEHA prohibition against discrimination to that based on
perceptions of an individual's gender, regardless of
whether the perceived gender characteristics are different
from those traditionally associated with the individual's
sex at birth.
The bill would permit employers to require employees to
adhere to reasonable workplace appearance and standards
consistent with state or federal law, provided that
employees are allowed to appear or dress consistently with
their gender identity.
BACKGROUND
AB 196 resurrects AB 1649 (Goldberg, 2001, died on the
Senate Inactive File), which contained almost identical
language. Sponsored by the same group, the California
Alliance for Pride and Equality, AB 196 seeks to prohibit
discrimination in housing and employment based on gender
stereotypes and to extend the protections of existing
anti-discrimination laws to transsexual and transgender
individuals.
(more)
AB 196 (Leno)
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CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits employment and housing discrimination based on
sex and sexual orientation, as well as race, religion,
color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, or
age, as those terms are defined. [Government Code Sections
12920 et seq.]
Existing law defines prohibited acts of discrimination to
include the firing of or refusal to hire an individual
based on the individual's sex, harassing an individual
based on their sex, refusing to sell or rent housing to an
individual based on their sex, and setting terms of lending
for an individual based on their sex.
Existing law defines "sex" as including, but not limited
to, pregnancy, childbirth, or medical conditions related to
pregnancy or childbirth, and "sexual orientation" as
heterosexuality, homosexuality, and bisexuality.
Existing law defines "gender," for purposes of the hate
crimes statutes prohibiting violence against another or to
interfere with another's exercise of civil rights, as the
victim's actual sex or the defendant's perception of the
victim's sex, and includes the defendant's perception of
the victim's identity, appearance, or behavior, whether or
not that identity, appearance or behavior is different from
that traditionally associated with the victim's sex at
birth. [Penal Code Section 422.76.]
This bill would provide that for the purposes of FEHA, the
term "sex" shall include a person's gender, as that term is
defined in Penal Code Section 422.76.
This bill would permit an employer to require an employee
to adhere to reasonable workplace appearance, grooming and
dress standards not precluded by state or federal law,
provided the employee is allowed to appear or dress
consistently with the employee's gender identity.
COMMENT
AB 196 (Leno)
Page 3
1. Stated need for the bill
According to the sponsor, "[d]iscrimination is wrong and
hurts all Californians, especially when it is based on
characteristics like gender identity or expression that
have nothing to do [with] one's qualifications as an
employee or a tenant. This bill will provide protection
to those who are fired, evicted, or harassed every day
because they exhibit traits not stereotypically
associated with their sex at birth. Such traits may
include a person's personality, clothing, hairstyle,
speech, mannerisms, or demeanor; they may also include a
person's characteristics such as vocal pitch, facial
hair, or the size and shape of a person's body. This
will protect men who are seen as "too feminine" and women
perceived as "too masculine."
2. Gender-based hate crime punishable under California
law; bill would extend protection to discriminatory
practices in housing and employment
In California, no person may injure or threaten another
on the basis of that person's gender or perceived gender,
whether the person's appearance, identity or behavior
conforms to what is traditionally associated with that
person's sex at birth. [Penal Code Section 422.6.] Other
"hate crimes" statutes prohibit offenses against
individuals on the same basis.
Both federal and state anti-discrimination laws prohibit
discrimination on the basis of sex. Although the
statutes have used only the words "sex" and "sexual
orientation," case law has interchangeably used the words
"sex" and "gender." Thus, the U.S. Supreme Court in
Price Waterhouse v. Hopkins , 490 U.S. 228 (1989) ruled
that the employer unlawfully discriminated against an
employee on the basis of sex by consciously giving
credence and effect to Price Waterhouse partners'
comments about her that resulted from sex stereotyping.
"Congress' intent to forbid employers to take gender into
account in making decisions appears on the face of the
statute?We take these words to mean that gender must be
irrelevant to employment decisions." [ Price Waterhouse ,
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supra, at 240.]
This bill would import the definition of "gender" under
the Penal Code statutes into the definition of "sex" in
the Fair Employment and Housing Act, thereby prohibiting
discriminatory practices in housing and employment on the
basis of one's gender or perceived gender. Thus, the
bill would cover discrimination based on gender
stereotyping as well as discrimination against
transsexual and transgender individuals.
Supporters of this bill argue that although the courts,
as well as the Department of Fair Employment and Housing,
have interpreted sex discrimination laws to include
gender as a protected characteristic, "it is critically
important to codify these protections in the law.
Without AB 196, the individuals who most need these
protections may not understand they are protected, and
employers and others may be unaware that this type of
discrimination is prohibited." [Letter from National
Center for Lesbian Rights, March 12, 2003.]
Another supporter, the Human Rights Campaign, contends
that AB 196 will help businesses and property owners, as
well as employees and tenants, by explicitly clarifying
the legal expectations of employers and landlords.
3. Employers may still require reasonable dress and
appearance, but must allow employees to dress consistent
with gender identity
This bill would specifically permit employers to require
that an employee adhere to reasonable workplace
appearance, grooming and dress standards that are not
otherwise precluded by other state or federal law,
provided the employer allows the employee to appear or
dress consistently with the employee's gender identity.
a. Bill would allow transsexuals or transgenders to
dress according to their gender identity
One criticism of AB 1649 (Goldberg), which merely
AB 196 (Leno)
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imported the hate-crimes definition of gender into the
FEHA, was that it was too broad in scope, and that it
would have given employees unrestricted freedom to
dress as they pleased.
This provision of the bill, which clearly allows
employers to require reasonable dress and appearance,
should take care of concerns raised by opponents that
the importation of the definition of "gender" from the
Penal Code to the FEHA could result in a person
dressing as one sex one day and of the opposite sex
another day, or a man dressing as a woman and a woman
dressing as a man, as long as he or she is
well-groomed. Supporters argue that individuals who
claim a different gender from day to day, or who do so
simply in jest or to be disruptive, do not meet the
criteria for transsexuality. Webster's New World
Dictionary defines "transsexual" as "a person who is
predisposed to identify with the opposite sex,
sometimes so strongly as to undergo surgery and
hormone injections to effect a change of sex." It
would be up to the trier of fact to determine if an
individual meets this standard or other standard that
is consistent with the author's intent. Supporters
argue that it would be most unlikely that day-to-day
changes or changes in jest in gender identity would be
covered by this bill.
According to a recent survey by the Transgender Law
Center, nearly one in every two respondents had
experienced discrimination in employment and housing.
A 1999 study by the San Francisco Department of Public
health states that most transgender people have
experienced various types of employment discrimination
and are disproportionately driven into poverty. The
study further reveals that the unemployment rate for
transgender people in San Francisco is 70%.
This bill is intended to offer protection to
transgender individuals. However, it would also
benefit any person who does not possess traits or
conduct themselves in ways stereotypically associated
with his or her sex. Thus, this bill would protect a
female employee from being implored to "walk more
femininely, talk more femininely, dress more
AB 196 (Leno)
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femininely, wear make-up, have her hair styled, and
wear jewelry" in order to be promoted to partner in an
accounting firm. [ Price Waterhouse , supra, quoting the
appellate court at 618 F. Supp., at 1117.]
b. Opponents claim that bill would burden businesses
Concerns of the bill's opponents are not assuaged by
this provision allowing an employer to require
reasonable dress and appearance at the workplace.
The Chamber of Commerce, for example, contends that
importing the definition of gender from the Penal Code
into the workplace "would make almost any comment,
look, or action between workers a potential prohibited
act protected under FEHA?This bill would be especially
onerous for employers because regulating the workplace
is significantly different than the hate crime
situations under which this definition was developed."
They cite the fact that the workplace is already
highly regulated and employee protection from physical
violence is already covered under the Labor Code.
Further, they state, the elements of evidence
necessary to successfully prosecute under the Penal
Code is significantly more stringent than FEHA.
Lastly, the Traditional Values Coalition contends that
"transgendered school teachers and employees could
have a detrimental effect on a student's natural
gender identity. This bill seeks to challenge the
norms of society through the force of law."
Support:Lieutenant Governor Cruz Bustamante; AIDS Project
East Bay; AIDS
Project Los Angeles; AIDS Legal Referral Panel
(ALRP); Alice B. Toklas Lesbian Gay Bisexual
Transgender Democratic Club; American Civil
Liberties Union; American Federation of State,
County and Municipal Employees, AFL-CIO;
Anti-Defamation League; Bay Area Lawyers for
Individual Freedom; Billy DeFrank Lesbian Gay
Bisexual Transgender Community Center of Silicon
Valley; Board of Supervisors, City and County of San
Francisco; Bunny Inc.; California Apartment
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Association; California Chapter of the National
Association of Social Workers; California Church
Impact, Public Policy Coordinator; California
Commission on the Status of Women; California
Independent Public Employees Legislative Council;
California Labor Federation; California Independent
Public Employees Legislative Council; California
Professional Firefighters; California National
Organization for Women; California School Employees
Association; California State Employees Association;
California Teachers Association; California Women's
Law Center; Catholic War Veterans of the United
States, Coachella Valley Chapter; Charles Zukow
Associates; Chinese for Affirmative Action; City of
San Francisco; City of Santa Cruz; Donordigital;
East Bay Community Law Center; Eleanor Roosevelt
Democratic Club; Elections Committee of the County
of Orange; Equal Rights Advocates; Eviction Defense
Collaborative; Friends Committee on Legislation; FTM
International; Gay-Straight Alliance Network; Golden
Gate Business Association; Greater San Diego
Business Association; Harvey Milk Lesbian Gay
Bisexual Transgender Democratic Club; Housing
California; Housing Rights Committee of San
Francisco; Human Rights Campaign; Human Rights/Fair
Housing Commission of the City and County of
Sacramento; Human Rights Commission of the City and
County of San Francisco; Lambda Legal; Lambda
Letters Project; L.A. Gay and Lesbian Center;
Mexican American Legal Defense and Education Fund;
Mossinger Consulting; National Center for Lesbian
Rights; National Gay and Lesbian Task Force;
National Transgender Advocacy Coalition; New Leaf
Services For Our Community; Northern California
Nevada Conference of the United Church of Christ;
Olivia Cruises and Resorts; Orange County
Transgender Taskforce; SAF-T Corporation; San Diego
TransFamily; Santa Barbara Women's Political
Committee; San Francisco Tenants Union; Senior
Housing Action Collaborative; Service Employees
International Union (SEIU); Southern California HIV
Advocacy Coalition; Southern California Nevada
Conference United Church of Christ; Spectrum
Magazine; Stonewall Democratic Club of Greater
Sacramento; The Center San Diego County; The Legal
AB 196 (Leno)
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Aid Society; The "Ministry In Action Commission" of
St. Mark's United Methodist Church; Toltec Center of
Creative Intent; Transgender Law Center; Women's
Employment Rights Clinic of Golden Gate University;
Woodenship; several individuals
Opposition:California Chamber of Commerce; California
Employment Law
Council; California Manufacturers & Technology
Association;
Committee on Moral Concerns; Eagle Forum of
California; Irvine
Chamber of Commerce; Traditional Values
Coalition; Women
Volunteer in Politics; several individuals
HISTORY
Source: California Alliance for Pride and Equality (CAPE)
(sponsor)
Related Pending Legislation: None Known
Prior Legislation: AB 1649 (Goldberg, 2001). Passed by
Senate Judiciary Committee, but died on the
Senate Inactive File.
Prior Vote: Asm. L.&E. (Ayes 6, Noes 1); Asm. Appr. (Ayes
17, Noes 8); Asm. Flr. (Ayes 42, Noes 34)
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