BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 830


                                                                    Page  1





          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  








                                                                     AB 830


                                                                    Page  2





          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:  








                                                                     AB 830


                                                                    Page  3







          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).)









                                                                     AB 830


                                                                    Page  4






          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  








                                                                     AB 830


                                                                    Page  5





          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:










                                                                     AB 830


                                                                    Page  6





               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  








                                                                     AB 830


                                                                    Page  7





               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  








                                                                     AB 830


                                                                    Page  8





               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  








                                                                     AB 830


                                                                    Page  9





          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








                                                                     AB 830


                                                                    Page  10







          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


                                                                    Page  11