BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 887|
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                                 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 
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          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.)

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          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.)

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          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 

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          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 

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          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.)


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          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 

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               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

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