BILL ANALYSIS Ó
AB 887
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Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 887 (Atkins) - As Amended: March 29, 2011
SUBJECT : GENDER
KEY ISSUE : SHOULD THE DEFINITION OF GENDER IN CERTAIN
ANTI-DISCRIMINATION LAWS BE CLARIFIED BY EXPRESSLY ADDING THE
TERMS "GENDER IDENTITY" AND "GENDER EXPRESSION" WHERE ONLY THE
TERM "GENDER" CURRENTLY APPEARS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by Equality California and Transgender Law
Center, would make non-substantive clarifications to the
definition of gender in certain anti-discrimination laws to
expressly include the terms "gender identity" and "gender
expression" where currently only the term "gender" appears. It
would also define gender expression as meaning a person's
gender-related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at
birth. In its current form, the author states, the law is vague
and confusing for both those it is designed to protect and those
who bear the responsibility of ensuring compliance.
Consequently nearly 70% of transgender Californians have
reportedly experienced discrimination or harassment at work.
Supporters contend that this bill will help ensure that the law
is better understood. They note that by clarifying the law as
this bill proposes may increase the likelihood that employers,
housing authorities, schools, and others who bear the
responsibility of ensuring that the laws are enforced will be
better prepared to prevent discrimination and respond more
quickly and effectively when incidents of discrimination do
occur. Opponents of the bill, the Capitol Resource Family
Impact, in association with the Capitol Resource Institute,
oppose this measure, contending the bill is "yet another attempt
to further create gender confusion in society by loosely
defining and altering a person's natural sex through the
codification of gender identity and expression as a protected
class."
AB 887
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SUMMARY : Seeks to clarify the definition of gender in certain
anti-discrimination laws to expressly include the terms "gender
identity" and "gender expression" where only the term "gender"
currently appears. Specifically, this bill :
1)Expressly adds the terms "gender identity" and "gender
expression" to various provisions that define sex as including
gender.
2)Defines "gender expression" as meaning a person's
gender-related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at
birth.
3)Expressly adds the terms gender, gender identity, and gender
expression as among the enumerated characteristics under
various provisions of the law that require equal rights and
opportunities and prohibit discrimination based on specific
enumerated characteristics.
4)Requires an employer to allow an employee to appear or dress
consistently with the employee's gender expression, in
addition to with the employee's gender identity.
EXISTING LAW :
1)Contains various provisions that define sex as including
gender and defines gender as including a person's gender
identity and gender related appearance and behavior whether or
not stereotypically associated with the person's assigned sex
at birth. (Civil Code section 51(a)(4); Educational Code
section 66260.7; and Penal Code section 422.56.)
2)Contains various provisions that require equal rights and
opportunities in different areas including education, housing,
and employment, regardless of gender. (Education Code section
200; Government Code sections 12920, 12921, 12940, and 12955.)
3)Prohibits discrimination based on specified enumerated
characteristics, including sex and gender. (Education Code
sections 220, and 66270; Government Code sections 12920,
12921, 12940, and 12955.)
4)Authorizes the Fair Employment and Housing Commission and the
Department of Fair Employment and Housing to perform certain
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functions to eliminate discrimination in employment and
housing on the basis of sex and other enumerated
characteristics. (Government Code section 12930.)
5)Requires an employer to allow an employee to appear or dress
consistently with the employee's gender identity. (Government
Code section 12955.)
COMMENTS : This bill, sponsored by Equality California and
Transgender Law Center, seeks to reduce confusion among those
who bear the responsibility of ensuring that current
anti-discrimination laws are enforced. The measure would make
non-substantive changes to the definition of gender in certain
anti-discrimination laws by expressly adding the terms "gender
identity" and "gender expression" where only the term "gender"
currently appears, and would define gender expression as meaning
a person's gender-related appearance and behavior whether or not
stereotypically associated with the person's assigned sex at
birth.
The author of the bill notes in support of the bill that:
By specifying that 'gender identity' and 'gender
expression' are included in these anti-discrimination
statutes, AB 887 makes the law easier to understand and
implement for those who employ, house, insure, and educate
Californians. Often, transgendered people who experience
discrimination at work or elsewhere are not aware of their
legal rights. AB 887 makes our anti-discrimination laws
clearer and stronger to ensure that all Californians,
including transgender people, are protected equally under
the law.
California law has long afforded broad protection against
unreasonable, arbitrary, or invidious discrimination based on
irrelevant differences between men and women. In 1959 the
California Legislature enacted the most ardent codification of
these broad principals with the passage of the Unruh Civil
Rights Act (the Unruh Act). The Unruh Act originally did not
expressly mention all grounds of impermissible discrimination,
and the Act was subsequently amended in 1974 to explicitly
prohibit arbitrary discrimination based on sex. (Civil Code
section 51.)
While the Unruh Act does not expressly mention gender identity
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or gender expression as a ground of discrimination in which
business establishments in California are forbidden to engage,
the Supreme Court has rejected the argument that the Unruh Act's
ban on discrimination reaches only the classifications expressly
specified in the Act's text. (See Harris v. Capital Growth
Investors XIV , 52 Cal.3d 1142, 1154-55 (1991).) Instead, the
courts have made it clear that the Unruh Act also prohibits
arbitrary discrimination based on other non-enumerated "personal
characteristics." (Koebke v Bernardo Heights , 36 Cal. 4th 824
(2005); Stoumen v. Reilly , 37 Cal. 2d 713, 715-16 (1951).)
Exiting law defines gender as "sex" and includes a person's
gender identity and gender-related appearance and behavior
whether or not stereotypically associated with the person's
assigned sex at birth. (Civil Code section 51(a)(4);
Educational Code section 66260.7; and Penal Code section
422.56.) The author of the bill further clarifies, "Gender
identity refers to a person's deeply felt internal sense of
being male or female. Gender expression refers to one's
behavior, mannerisms, appearance and other characteristics that
are perceived to be masculine or feminine." While the Unruh Act
and other similar anti-discrimination statutes protect
non-enumerated classifications such as transgendered
Californians, this fact is not always known by those the law was
intended to protect, or by employers, housing authorities, and
others vested with the responsibility of ensuring that current
anti-discrimination laws are enforced.
The author introduced this bill to reduce uncertainty and
ambiguity in this regard. She notes:
AB 887 will take existing protections based on gender
identity and expression and specifically list them as
protected categories in our anti-discrimination laws. By
making these protections explicit, people will more clearly
understand California's anti-discrimination laws, which may
increase the likelihood that employers, housing
authorities, schools, etc. would work to prevent
discrimination and/or respond more effectively and
expeditiously at the first indications of discrimination.
The Gender Nondiscrimination Act will make clear that
discrimination based on failure to conform to narrow gender
stereotypes is against the law.
Nearly 70% of transgender Californians have experienced
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discrimination or harassment at work. Californians who
experience discrimination based on gender identity and
gender expression at work or elsewhere often times do not
file complaints because they are unaware that they are
protected. Existing anti-discrimination laws are confusing
and vague for employers, housing authorities and others who
bear the responsibility of ensuring that the laws are
enforced. Therefore, the harms caused by discrimination can
be reduced by simply using language that is direct and
easily understood. AB 887 makes our anti-discrimination
laws clearer and stronger by adding gender identity and
gender expression to the list of protected categories.
ARGUMENTS IN SUPPORT : In support, the California Employment
Lawyers Association states:
By making these anti-discrimination provisions clearer, we
hope this bill will increase the likelihood that employers
will work to prevent discrimination and/or respond more
effectively and expeditiously at the first indications of
discrimination and will help empower workers who have been
discriminated against, but may not know their rights, to
seek justice.
ARGUMENTS IN OPPOSITION : As noted above, the Capitol Resource
Family Impact, in association with Capitol Resource Institute
opposes this measure, contending this bill "is yet another
attempt to further create gender confusion in society by loosely
defining and altering a person's natural sex through the
codification of gender identity and expression as a protected
class."
Pending Related Legislation : AB 620 (Block) would mandate
professional development and awareness training on issues of
concern for LGBT faculty, students and staff; encourage campuses
to identify a point-person for addressing needs of LGBT faculty,
students and staff on campus and add the individual to their
portfolio of personnel in student affairs. This bill would
additionally require that where data is collected universities
to allow sexual orientation and gender identity to be
self-identified for faculty, staff, or students, and that data
shall be shared with CPEC for future analyses.
SB 48 (Leno) would require age appropriate accurate portrayals
of LGBT historical figures in K-12 curriculum. It would also
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prohibit adoption of instructional materials that reflect
negatively on individuals solely based on sexual orientation.
REGISTERED SUPPORT / OPPOSITION :
Support
Equality California (co-sponsor)
Transgender Law Center (co-sponsor)
California Employment Lawyers Association
Opposition
Capitol Resource Family Impact
Analysis Prepared by : Drew Liebert and Erik Martin / JUD. /
(916) 319-2334