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