BILL ANALYSIS Ó
AB 830
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Date of Hearing: May 5, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 830
(Eggman) - As Introduced February 26, 2015
As Proposed to be Amended
SUBJECT: CIVIL ACTIONS: GENDER VIOLENCE
KEY ISSUES:
1)SHOULD THE DEFINITION OF THE TERM "GENDER" IN THE SECTION OF
THE CIVIL CODE GOVERNING CIVIL ACTIONS FOR GENDER VIOLENCE
CONFORM TO THE DEFINITION OF THAT TERM IN THE UNRUH CIVIL
RIGHTS ACT SO THAT THE PROTECTIONS AND REMEDIES IN CURRENT LAW
AGAINST VIOLENCE BASED UPON A PERSON'S GENDER WOULD BE
EXTENDED TO VIOLENCE BASED UPON A PERSON'S SEXUAL ORIENTATION
AND GENDER IDENTITY?
2)SHOULD THE CIVIL CODE GOVERNING CIVIL ACTIONS FOR GENDER
VIOLENCE BE AMENDED TO PROVIDE A NEW CIVIL ACTION FOR AN ACT
OF VIOLENCE THAT IS COMMITTED, AT LEAST IN PART, BASED UPON
THE SEXUAL ORIENTATION OF THE VICTIM?
SYNOPSIS
California law has long afforded its residents with broad
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protection against unreasonable, arbitrary, or invidious
discrimination based on personal characteristics. In 1959 the
California Legislature enacted these broad principals by passing
the Unruh Civil Rights Act (Unruh). Most recently, Unruh was
amended (by AB 887 (Atkins), Chapter 719, Statutes of 2011) to
specify that gender identity and gender expression are included
in Unruh's prohibition against discrimination on the basis of
sex. This non-controversial bill would amend the definition of
"gender" in Civil Code Section 52.4 to conform with the
definition of that term in the Unruh Civil Rights Act. It would
also provide a new civil action for an act of violence that is
committed, at least in part, based on the sexual orientation of
the victim. The author and sponsor say that these changes are
necessitated by the prevalence of violence against the LGBTQ
community. This bill is sponsored by the Conference of
California Bar Associations and supported by a number of
organizations, including AFSCME, California Women Lawyers,
Consumer Attorneys of California, Equality California, and the
National Association of Social Workers. It has no known
opposition.
SUMMARY: Amends the definition of "gender" in Civil Code
Section 52.4 to conform with the definition of that term in the
Unruh Civil Rights Act and provides a new civil action for an
act of violence that is committed at least in part based on the
sexual orientation of the victim. Specifically, this bill:
1)Expands the definition of gender violence to include violence
committed at least in part based on the sexual orientation of
the victim and would defines the term "gender" to include a
person's gender identity and gender expression.
2)Provides that an act of violence that is committed, at least
in part, based on the sexual orientation of the victim is
defined as "gender violence."
EXISTING LAW:
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1)Provides that "gender violence," is a form of sex
discrimination and means any of the following:
a) One or more acts that would constitute a criminal
offense under state law that has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, committed at least in
part based on the gender of the victim, whether or not
those acts have resulted in criminal complaints, charges,
prosecution, or conviction.
b) A physical intrusion or physical invasion of a sexual
nature under coercive conditions, whether or not those acts
have resulted in criminal complaints, charges, prosecution,
or conviction. (Civil Code Section 52.4(c). All further
statutory references are to the California Civil Code,
unless otherwise indicated.)
1)Provides that any person who has been subjected to gender
violence may bring a civil action for damages against any
responsible party. (Section 52.4(a).)
2)Allows the plaintiff in a civil action for gender violence to
seek actual damages, compensatory damages, punitive damages,
injunctive relief, any combination of those, or any other
appropriate relief and, if the plaintiff prevails, to be
awarded attorney's fees and costs. (Section 52.4(a).)
3)Pursuant to the Unruh Civil Rights Act (Unruh), provides that
all persons, regardless of sex, race, color, religion,
ancestry, national origin, disability, medical condition,
genetic information, marital status, or sexual orientation,
are entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business
establishments of every kind whatsoever. (Section 51(b).)
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4)Defines "sex" to include, but not be limited to, a person's
gender and defines "gender" to mean sex and include a person's
gender identity and gender expression. (Section 51(e)(5).)
5)Defines "gender expression" to mean a person's gender-related
appearance and behavior, whether or not stereotypically
associated with the person's assigned sex at birth. (Section
51(e)(5).)
FISCAL EFFECT: As currently in print the bill is keyed
non-fiscal.
COMMENTS: California law has long afforded its residents with
broad protection against unreasonable, arbitrary, or invidious
discrimination based on personal characteristics. In 1959 the
California Legislature enacted these broad principals by passing
the Unruh Civil Rights Act (Unruh). Unruh originally listed
only race, color, religion, ancestry, and national origin as the
grounds of impermissible discrimination, but the Act was
subsequently amended in 1974 to explicitly prohibit arbitrary
discrimination based on sex. (Section 51.) Most recently, it
was amended in 2011 (by AB 887 (Atkins), Chapter 719, Statutes
of 2011) to specify that gender identity and gender expression
are included in Unruh's prohibition against discrimination on
the basis of sex.
It may not be necessary to list all protected personal
characteristics in Unruh, however, because the Supreme Court has
rejected the argument that the act reached only the protected
classifications that are expressly included in its wording.
(See Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d
1142, 1154-55.) Instead, the courts have made it clear that
Unruh has always prohibited arbitrary discrimination based on
other non-enumerated "personal characteristics." (Koebke v
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Bernardo Heights (2005) 36 Cal. 4th 824; Stoumen v. Reilly
(1951) 37 Cal. 2d 713, 715-16.) Therefore, the inclusion of
gender identity and gender expression in Unruh - both deeply
personal characteristics - may not have been necessary.
Nevertheless, it may be helpful to include such characteristics
in the law for clarity and guidance. For example, when AB 887
was pending in 2011, the bill's co-sponsor (the Transgender Law
Center), wrote that, "Under the current statutory scheme, if an
HR manager looks up the Fair Employment and Housing Act in an
effort to list the protected categories in their business'
employee handbook, they will only see "gender." They will not
clearly see gender identity and gender expression because they
are contained in the definition of gender in a separate section
of the law."
Prevalence of Violence Based Upon Sexual Orientation, Gender
Identity, and Gender Expression. According to a 2010 National
Intimate Partner and Sexual Violence Survey (NISVS) by the
National Center for Injury Prevention and Control Centers for
Disease Control and Prevention, approximately one in eight
lesbian women and nearly half (46%) of bisexual women experience
rape in their lifetime. Most striking is that 64% of
transgender people have experienced sexual assault in their
lifetime. The study also showed that one in three bisexual
women and one in six heterosexual women have experienced
stalking victimization at some point during their lifetime.
(Walters, Chen, and Breiding, National Intimate Partner and
Sexual Violence Survey (NISVS): 2010 Findings on Victimization
by Sexual Orientation, National Center for Injury Prevention and
Control Centers for Disease Control and Prevention
(Atlanta), 2013.)
According to the author:
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Although the lesbian, gay and bisexual community has made
tremendous progress in civil rights protections, violence
motivated by a person's sexual orientation remains a
serious problem. The problem is particularly acute for
transgender individuals, who continue to face
discrimination, violence and even death.
. . .
Civil Code §52.4 provides strong protection and remedies
for victims of gender violence, by permitting them to bring
a civil action for damages - including actual damages,
compensatory damages, punitive damages, and/or injunctive
relief - against any responsible party. This is greater
protection than is currently found under other provisions
of law (e.g., Civil Code §51.7, which establishes a right
to be free from any violence, or intimidation by threat of
violence, for persons because of race, gender, sexual
orientation, etc., but which permits recovery only for
actual damages under §52). However, because §52.4 was not
included in legislation (AB 887, Chapter 719, Statutes of
2011) the refined the definition of "gender" to include
gender identity and gender expression, the case law to date
has held that "gender" for purposes of §52.4 and related
provisions continues to refer to biological gender only,
and does not include gender expression and gender identity.
AB 830 will correct this oversight by specifying that
"gender," as used in Civil Code §52.4, has the same meaning
as in the Unruh Act and numerous other code sections. The
bill also will extend the protections of the section to the
victims of violence committed at least in part based on the
sexual orientation of the victim. The author and sponsors
feel strongly that this additional protection is warranted,
given the violence and bullying inflicted upon LGBT
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individuals.
According to the National Center for Lesbian Rights:
Approximately 1 in 8 lesbian women and nearly half of
bisexual women experience rape in their lifetime, and
statistics likely increase when a broader definition of
sexual assault is used. Nearly half of bisexual men and
four in ten gay men have experienced sexual violence other
than rape in their lifetime, and though statistics
regarding rape vary, it is likely that the rate is higher
or comparable to heterosexual men. As with most hate-based
violence, transgender individuals are the most likely to be
affected in the LGBT community. A staggering 64% of
transgender people have experienced sexual assault in their
lifetime.
Though the Violence Against Women Act of 2013 (VAWA)
recently extended LGBT nondiscrimination protections in
resources for domestic and sexual violence, service
providers across the country still lack the cultural
competency needed to serve the LGBT community. . . LGBT
people must also face the specter of hate violence in the
form of sexual assault.
Finally, the bill's sponsor, the Conference of California Bar
Associations, writes in support of the bill:
Violence against members of the LGBT community - and
particularly the transgender members of that community -
continues at a frightening rate. According to the Human
Rights Campaign, "The level of violence targeting
transgender people, particularly transgender women of
color, is a national crisis that the LGBT movement has a
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responsibility to confront." The HRC reports that at least
13 transgender women were murdered in 2014. At least
another six have been killed this year.
. . .
AB 830 would conform the definition of "gender" in the
anti-gender violence statute, Civil Code §52.4, to the
definition in the Unruh Act and numerous other places in
statute, which includes gender identity and gender
expression within the definition. This will clarify that
the act's provisions and remedies extend to transgender
victims of gender-motivated violence. The bill also would
extend the act's protections and remedies to victims of
violence due to their sexual orientation.
Author's Clarifying Amendments. As introduced, this bill added
a new type of gender violence to Section 52.4: "(3) Violence, as
set forth in paragraph (1) or (2), committed at least in part
based on the sexual orientation of the victim." This wording
was potentially confusing for two reasons in relation to the
existing paragraph (2), regarding gender violence perpetrated by
the unlawful act of "physical intrusion or physical invasion of
a sexual nature under coercive conditions." First, the term
"committed at least in part based upon the sexual orientation of
the victim" implied that "sexual orientation" is relevant to the
proof of that unlawful act when, in fact, sexual orientation,
like gender, is irrelevant. Second, it implies that a new
element-- "committed at least in part based upon the sexual
orientation of the victim"-must be proved by the victim when the
attack is motivated by the victim's sexual orientation. In
order to remove this ambiguity, the author proposes the
following clarifying amendments:
On Page 2, line 19, after "gender" insert: "or sexual
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orientation"
On Page 2: strike out lines 25-26.
Prior relevant legislation. AB 887 (Atkins, Chapter 719,
Statutes of 2011 - redefined gender in the Unruh Civil Rights
Act, and a number of other code sections, to include gender
identity and gender expression.
AB 196 (Leno, Chapter 164, Statutes of 2003) - expanded the
definition of sex to include gender, actual or perceived, for
purposes of defining unlawful employment discrimination.
AB 1928 (Jackson, Chapter 842, Statutes of 2002) - enacted
Section 52.4, regarding gender violence.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (sponsor)
AFSCME
Bay Area Lawyers for Individual Freedom
California Communities United Institute
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California Women Lawyers
California Women's Law Center
Consumer Attorneys of California
Equality CA
Equal Rights Advocate
Legal Aid Society
National Association of Social Workers
Opposition
None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334
AB 830
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