BILL ANALYSIS Ó
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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 8/15/11)
Equality California (co-source)
Transgender Law Center (co-source)
Gay Straight Alliance Network (co-source)
Board of Equalization Member Betty Yee
Lieutenant Governor Gavin Newsom
Office of Mayor Antonio Villaraigosa
American Civil Liberties Union
American Federation of State, County and Municipal
Employees, AFL-CIO California Communities United Institute
Anti-Defamation League
California Coalition for Youth
California Commission on the Status of Women
California Employment Lawyers Association
California Faculty Association
California Faith for Equality
California Labor Federation
California National Organization for Women
Consumer Attorneys of California
Planned Parenthood Affiliates of CA
Public Advocates
Regional Human Rights/Fair Housing Commission
Sacramento Gay & Lesbian Center
Sacramento Rainbow Chamber of Commerce
Service Employees International Union
The Trevor Project
OPPOSITION : (Verified 8/15/11)
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
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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
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
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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 8/15/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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