BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 887| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 887 Author: Atkins (D), et al. Amended: 04/27/11 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE : 3-2, 06/14/11 AYES: Evans, Corbett, Leno NOES: Harman, Blakeslee SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 54-24, 05/16/11 - See last page for vote SUBJECT : Gender SOURCE : Equality California Transgender Law Center Gay Straight Alliance Network DIGEST : This bill clarifies the definition of gender under the Fair Employment and Housing Act and the Unruh Civil Rights Act as well as other anti-discrimination laws. This bill expressly includes the terms gender identity" and "gender expression" wherever the term "gender" currently appears and would prohibit employers, schools, and housing authorities from discriminating based on a person's gender identity or gender expression. This bill expressly specifies that "gender" means sex, and include a person's gender identity and gender expression. This bill also specifies that "gender expression" means "a person's CONTINUED AB 887 Page 2 gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." ANALYSIS : Existing law, the Unruh Civil Rights Act and the Fair Employment and Housing Act (FEHA), defines "sex" using a series of cross-references to include, but not be limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. Under those cross references, "sex" also includes, but is not limited to, a person's gender and "gender" means 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. (Civ. Code Sec. 51(a)(4); Gov. Code Sec. 12926(p); Pen. Code Sec. 422.56.) This bill, under the Unruh Civil Rights Act and FEHA, deletes the cross-references and expressly specify that "sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth and would also expressly specify that "sex" includes, but is not limited to, a person's gender. This bill also expressly specifies that "gender" means sex, and includes a person's gender identity and gender expression. This bill further states that "gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. Existing law, the Unruh Civil Rights Act, generally prohibits business establishments from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability, or medical condition, marital status, or sexual orientation and provides civil remedies for violations of its provisions. (Civ. Code Sec. 51 et seq.) Existing law, the Fair Employment and Housing Act, prohibits discrimination in housing and employment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. (Gov. Code Sec. 12920 et seq.) CONTINUED AB 887 Page 3 This bill also prohibits discrimination under Unruh and FEHA on the basis of gender, gender identity, and gender expression. Existing law provides that the California Department of Fair Employment and Housing and the Fair Employment and Housing Commission are authorized to enforce and regulate violations of discrimination in housing and employment on the basis of a person's sex or gender and other specified characteristics. (Gov. Code Secs. 12930 and 12931.) This bill expressly authorizes the California Department of Fair Employment and Housing and the Fair Employment and Housing Commission to enforce and regulate violations of discrimination in housing and employment on the basis of a person's gender identity and gender expression. Existing law provides that the legal owner of a property who believes that he or she is subject to a restrictive covenant that unlawfully discriminates because of race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income, or ancestry, may record a document entitled "Restrictive Covenant Modification," following a specified process. (Gov. Code Secs. 12955, 12956.1, and 12956.2.) This bill allows a property owner to seek the removal of any unlawful restrictive covenant that discriminates on the basis of gender, gender identity or gender expression, following the same specified process. Existing law provides that it is the policy of the State of California that all persons in public schools be afforded equal rights and opportunities in the education institutions of the state and equitable access to educational programs designed to strengthen technological skills regardless of their disability, gender, nationality, race or ethnicity, religion, or sexual orientation. Existing law provides that no person shall be subjected to discrimination on these bases in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance. (Ed. Code Secs. 200, 220, 51007 and 66270.) CONTINUED AB 887 Page 4 This bill adds "gender identity" and "gender expression" to the list of persons who shall not be discriminated against in educational institutions. Existing law, the Carl Washington School Safety and Violence Prevention Act, provides that it is the intent of the Legislature that public schools have access to supplemental resources to combat bias on the basis of race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, to prevent and respond to acts of hate violence and bias-related incidents. (Ed. Code Sec. 32228.) This bill adds "gender identity" and "gender expression" to this list. Existing law, the Educational Equity Chapter and the Sex Equity in Education Act, defines "gender" to mean "sex, and includes a person's gender identity and gender appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." (Ed. Code Secs. 210.7 and 66260.7.) This bill, under the Educational Equity Chapter and the Sex Equity in Education Act, would expressly add gender expression to the above definition of "gender." Existing law, the Insurance Discriminatory Practices Chapter, defines "sex" as having the same meaning as "gender," which means 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. (Ins. Code Secs. 10140 and 10140.2) This bill defines "sex", under the Insurance Discriminatory Practices Chapter as having the same meaning as "gender" and expressly provide that gender means sex, and includes a person's gender identity and gender expression, as defined. Existing law provides that an insurer of a religious organization, educational organization, or nonprofit organization, as defined, shall not cancel or refuse to CONTINUED AB 887 Page 5 renew a policy for a loss that is a result of a hate crime committed based on the groups race, color, religion, ancestry, national origin, disability, gender, or sexual orientation. (Ins. Code Sec. 676.10.) This bill adds "gender", "gender identity" and "gender expression", as defined, to this list. Existing law provides that no insurer for life or disability insurance shall fail or refuse to accept an application for insurance based on the person's race, color, religion, sex, national origin, ancestry, or sexual orientation. (Ins. Code Sec. 676.10.) This bill adds "gender," "gender identity" and "gender expression", as defined, to this list. Existing law provides that the Healthy Families Insurance Program shall be administered without regard to gender, race, creed, color, sexual orientation, health status, disability, or occupation. (Ins. Code Sec. 12693.28.) This bill additionally requires that the Healthy Families Insurance Program be administered without regard to gender identity or gender expression. Existing law provides that for purposes of determining whether to grant or deny a workers compensation claim, no personal relationship shall be deemed to exist between an employee and a third party who has injured or killed the employee, based on a determination that the third party killed or injured the employee because of the third party's personal beliefs relating to his or her perception of the employee's race, religious creed, color, national origin, age, gender, disability, sex, or sexual orientation. (Lab. Code Sec. 3600.) This bill adds "gender identity" and "gender expression" to this list. Existing law provides that every person, regardless of race, color, creed, religion, national origin, gender, age, sexual orientation, or handicap, be secure and protected from fear, intimidation, and physical harm caused by the CONTINUED AB 887 Page 6 activities of violent groups. (Pen. Code Sec. 186.21.) This bill expressly adds "gender identity," and "gender expression" to this list. Existing law provides that "gender" means sex, and includes a person's gender identity and gender appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth. (Pen. Code Sec. 422.56.) This bill expressly adds gender expression to the above definition of gender. Existing law provides that any person who is convicted of any offense against a person or property of another because of the victim's actual or perceived race, color, ethnicity, religion, nationality, country of origin, ancestry, disability, gender, or sexual orientation the court shall make an order protecting the victim. (Pen. Code Sec. 422.85.) This bill expressly adds gender identity and gender expression to this list. Existing law provides that if a person is released from prison on parole for committing a crime against a victim based on the victims actual or perceived race, color, ethnicity, religion, nationality, country of origin, ancestry, disability, gender, or sexual orientation, the parole authority shall make it a condition of parole that the parolee refrain from further contact, as specified, of the victim. (Pen. Code Sec. 3053.4.) This bill expressly adds gender identity and gender expression to this list. Existing law provides that it is the right of every person regardless of actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation to be secure and protected from fear. Existing law also provides that it is not the intent of this chapter to interfere with the exercise of rights protected by the United States Constitution. (Pen. Code Sec. 11410.) CONTINUED AB 887 Page 7 This bill expressly adds gender identity and gender expression to this list. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 7/8/11) Equality California (co-source) Transgender Law Center (co-source) Gay Straight Alliance Network (co-source) American Civil Liberties Union American Federation of State, County and Municipal Employees, AFL-CIO; California Communities United Institute California Employment Lawyers Association California Faculty Association California National Organization for Women Consumer Attorneys of California Public Advocates Sacramento Gay & Lesbian Center The Trevor Project OPPOSITION : (Verified 7/8/11) Capitol Resource Family Impact Capitol Resource Institute ARGUMENTS IN SUPPORT : Equality California, the Transgender Law Center and the Gay Straight Alliance Network, co-sponsors of this bill, write: California laws protect people from discrimination based on gender identity and gender expression. California non-discrimination laws define 'gender' to mean sex, including a person's gender identity (how they see themselves) and gender expression (how other people see them). Existing state non-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. Additionally, Californians who experience discrimination based on gender identity and gender CONTINUED AB 887 Page 8 expression at work or elsewhere often do not file complaints because they are unaware that they are protected. ÝThis bill] would take existing protections based on gender identity and expression and make these protections explicit so that people would more clearly understand California's nondiscrimination laws. This, in turn, may increase the likelihood that employers, housing authorities, and other groups would work to prevent discrimination and/or respond more effectively and expeditiously at the first indications of discrimination. ARGUMENTS IN OPPOSITION : The Capitol Resource Family Impact, in association with the Capitol Resource Institute, in opposition to the bill, argues that "Ýthis 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." ASSEMBLY FLOOR : 54-24, 05/16/11 AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Galgiani, Gatto, Gordon, Halderman, Hall, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza, Mitchell, Monning, Pan, Perea, V. Manuel Pérez, Portantino, Skinner, Solorio, Swanson, Torres, Wieckowski, Williams, Yamada, John A. Pérez NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly, Beth Gaines, Garrick, Grove, Hagman, Harkey, Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell, Nestande, Nielsen, Olsen, Silva, Smyth, Valadao, Wagner NO VOTE RECORDED: Gorell, Norby RJG:nl 7/11/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED AB 887 Page 9 CONTINUED