BILL ANALYSIS Ó
AB 830
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ASSEMBLY THIRD READING
AB
830 (Eggman)
As Amended May 7, 2015
Majority vote
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|Committee |Votes |Ayes |Noes |
|----------------+------+---------------------+---------------------|
|Judiciary |9-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |O'Donnell | |
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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.
1)Provides that any person who has been subjected to gender
violence may bring a civil action for damages against any
responsible party.
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.
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.
4)Defines "sex" to include, but not be limited to, a person's
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gender and defines "gender" to mean sex and include a person's
gender identity and gender expression.
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.
FISCAL EFFECT: None
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. Unruh originally listed only race, color, religion,
ancestry, and national origin as the grounds of impermissible
discrimination, but Unruh was subsequently amended in 1974 to
explicitly prohibit arbitrary discrimination based on sex. 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 United States
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
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
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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.)
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0000280
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