BILL ANALYSIS                                                                                                                                                                                                    



                                                                  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