BILL ANALYSIS Ó
AB 887
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CONCURRENCE IN SENATE AMENDMENTS
AB 887 (Atkins)
As Amended August 17, 2011
Majority vote
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|ASSEMBLY: |54-24|(May 16, 2011) |SENATE: |25-13|(August 30, |
| | | | | |2011) |
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Original Committee Reference: JUD.
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.
The Senate amendments make technical corrections and add
language to resolve conflict issues with AB 440 (Brownley) and
SB 559 (Padilla).
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
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not stereotypically associated with the person's assigned sex
at birth.
2)Contains various provisions that require equal rights and
opportunities in different areas including education, housing,
and employment, regardless of gender.
3)Prohibits discrimination based on specified enumerated
characteristics, including sex and gender.
4)Authorizes the Fair Employment and Housing Commission and the
Department of Fair Employment and Housing to perform certain
functions to eliminate discrimination in employment and
housing on the basis of sex and other enumerated
characteristics.
5)Requires an employer to allow an employee to appear or dress
consistently with the employee's gender identity.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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.
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
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prohibit arbitrary discrimination based on sex.
While the Unruh Act does not expressly mention gender identity
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 (1991), 52 Cal.3d 1142, 1154-55.) 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 (2005), 36 Cal.
4th 824; Stoumen v. Reilly (1951), 37 Cal. 2d 713, 715-16.)
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. 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.
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Nearly 70% of transgender Californians have experienced
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.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0001994