BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 830|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 830
Author: Eggman (D)
Amended: 6/23/15 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 6-1, 6/16/15
AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski
NOES: Anderson
ASSEMBLY FLOOR: 74-0, 5/14/15 - See last page for vote
SUBJECT: Civil actions: gender violence
SOURCE: Conference of California Bar Associations
DIGEST: This bill applies existing law remedies for victims of
gender-related violence to victims of sexual orientation-based
violence and otherwise defines "gender" in accordance with the
Unruh Civil Rights Act, to include "gender expression" and
"gender identity."
ANALYSIS:
Existing law:
1) Provides, under the Unruh Civil Rights Act, that all
persons in California are free and equal, and that
regardless of a person's sex, race, color, religion,
ancestry, national origin, disability, medical condition,
genetic information, marital status, or sexual orientation,
everyone is entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all
AB 830
Page 2
business establishments.
2) Defines "sex" for the above purposes to include, among
other things, a person's gender, and defines "gender" to
mean sex, and includes a person's gender identity and
"gender expression." Existing law further defines "gender
expression" to mean person's gender-related appearance and
behavior whether or not stereotypically associated with the
person's assigned sex at birth.
3) Generally defines "sex, race, color, religion, ancestry,
national origin, disability, medical condition, genetic
information, marital status, or sexual orientation" to
include a perception that the person has any particular
characteristic or characteristics within the listed
categories or that the person is associated with a person
who has, or is perceived to have, any particular
characteristic or characteristics within the listed
categories.
4) Prohibits, under the Ralph Civil Rights Act, any act of
violence, or intimidation by threat of violence, committed
against a person or the person's property because of the
person's race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age,
disability, or position in a labor dispute, or because
another person perceives them to have one or more of those
characteristics.
5) Provides that whoever denies, aids or incites a denial, or
makes any discrimination or distinction contrary to Section
51 (Unruh), 51.5 (the Civil Rights Act of 2005, extending
the prohibition against discrimination as provided in the
Unruh to a person who is perceived to have one or more of
the characteristics enumerated in the Act or because the
person is associated with a person who has or is perceived
to have any of those characteristics), or 51.6 (the Gender
Tax Repeal Act prohibiting discrimination, with respect to
the price charged for services of similar or like kind,
against a person because of the person's gender), is liable
for each and every offense for the actual damages, and any
amount that may be determined by a jury, or a court sitting
without a jury, up to a maximum of three times the amount of
actual damage but in no case less than four thousand dollars
AB 830
Page 3
($4,000), and any attorney's fees that may be determined by
the court in addition thereto, suffered by any person denied
the rights provided in those sections.
6) Provides that whoever denies a right provided by Section
51.7 (the Ralph Civil Rights Act) or 51.9 (pertaining to
sexual harassment), or aids, incites, or conspires in that
denial, is liable for each and every offense for the actual
damages suffered by any person denied that right and, in
addition:
An amount to be determined by a jury, or a court
sitting without a jury, for exemplary damages;
A civil penalty of twenty-five thousand dollars
($25,000) to be awarded to the person denied the right
provided by the Section 51.7 (Ralph Civil Rights Act) in
any action brought by the person denied the right, or by
the Attorney General, a district attorney, or a city
attorney. An action for that penalty brought pursuant to
the Section 51.7 (Ralph Civil Rights Act) shall be
commenced within three years of the alleged practice; and
Attorney's fees as may be determined by the court.
1) Provides that actions brought pursuant to the above
provisions are independent of any other actions, remedies,
or procedures that may be available to an aggrieved party
pursuant to any other law.
2) Authorizes, under the Tom Bane Civil Rights Act, the
Attorney General, or any district attorney or city attorney,
to bring an action seeking injunctive and equitable relief
in order to protect the peaceable exercise or enjoyment by
an individual or individuals of rights secured by the
Constitution or laws of the United States or this state,
whenever a person interferes by threats, intimidation, or
coercion, or attempts to interfere by threats, intimidation,
or coercion, with those rights. Existing law permits the
AG, district attorney or city attorney seeking injunctive or
equitable relief to protect the peaceable exercise of a
person's constitutional rights to also seek a civil penalty
of $25,000, to be awarded to the person whose rights were
violated, and to be assessed against each person who
violated those rights.
AB 830
Page 4
3) Permits, under the Bane Act, any individual whose exercise
or enjoyment of rights secured by the Constitution or laws
of the United States or this state has been interfered with,
or attempted to be interfered with, as described above, to
institute and prosecute in his or her own behalf a civil
action for damages, including, but not limited to, damages
under Section 52 (the Ralph Civil Rights Act), injunctive
relief, and other appropriate equitable relief to protect
the peaceable exercise or enjoyment of the right or rights
secured.
4) Creates, under Section 52.4, a statutory basis for civil
liability for acts of "gender violence," referred to as a
form of sex discrimination and defined as:
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; or
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.
11) Further provides that any person who has been subject to
gender violence may bring a civil action for damages under
this section against "any responsible party," and may sue
for actual damages, compensatory damages, punitive damages,
injunctive relief, any combination of those, or any other
appropriate relief. A prevailing plaintiff also may be
awarded attorney's fees and costs.
12) Further provides that an action brought pursuant to this
section must be brought within three years of the act, or
within eight years after the victim reaches the age of
majority (i.e., age 18), or within three years after the
date the victim discovers or reasonably should have
discovered a psychological injury or illness occurring after
the age of majority that was caused by the act, whichever
occurs later.
AB 830
Page 5
13) Further provides that this section does not establish any
civil liability of a person because of his or her status as
an employer, unless the employer personally committed an act
of gender violence.
This bill:
1)Adds an express definition of "gender" to Section 52.4
(creating a cause of action for gender violence), above, and,
for purposes of that section, define it to have the same
meaning set forth in Unruh.
2)Adds a new section immediately following Section 52.4, to
extend the same existing law remedies that are available to
victims of gender-based violence to victims of
sexual-orientation based violence, as specified.
Background
In California, actions for violations of civil rights have been
founded on state statutory provisions, federal statutes, and
common-law principles. California's four primary civil rights
acts are the Unruh Civil Rights Act, the Fair Employment and
Housing Act, the Ralph Civil Rights Act, and the Tom Bane Civil
Rights Act.
In 2002, the Legislature enacted AB 1928 (Jackson, Chapter 842,
Statutes of 2002) which created a statutory civil action for
injuries resulting from acts of gender-related violence and
allowed plaintiffs to seek compensatory and punitive damages
from the defendant. AB 1928 contained legislative findings that
acts of domestic violence and sexual abuse on the basis of
gender constitute a form of sexual discrimination. Also in
2002, the Legislature enacted AB 1933 (Reyes, Chapter 193,
Statutes of 2002) which created a statutory tort for injuries
resulting from victims of domestic violence. Prior to the
enactment of AB 1933, a victim of domestic violence would have
only been able to sue under the general assault and battery
statutes, which were subject to a one-year statute of
limitations, and did not authorize the recovery of attorney's
fees. AB 1928 and AB 1933, thus, filled a gap in law in order
to provide more tools for victims of gender and domestic
AB 830
Page 6
violence to recover damages for their abuse.
Both bills were prompted by a U.S. Supreme Court decision, U.S.
v. Morrison (2000) 529 U.S. 598, that had declared the federal
civil remedy for gender-motivated violence under the Violence
Against Women Act (VAWA) invalid. VAWA, as enacted in 1994, had
asserted that violent crimes motivated by the victim's gender
are discriminatory and violate the victim's civil rights and
allowed victims of gender-motivated violence to sue in federal
court for compensatory and punitive damages, injunctive relief,
and attorneys' fees. While acknowledging that "a voluminous
congressional record" supported the assertion that some state
justice systems exhibited a pervasive bias against victims of
sexual and domestic violence, the Court pointed out that the
Fourteenth Amendment permitted Congress to address only
state-sponsored violations of civil rights, not torts by persons
who are not acting under color of state authority. As such, the
Morrison Court concluded that individual states were the
appropriate authorities to provide civil remedies for private
torts, including acts of sexual and domestic violence.
AB 1928, of particular relevance to this bill, thus incorporated
language from the invalidated VAWA provision into a state civil
rights action for gender-related violence under Section 52.4 of
the Civil Code, and set forth the following legislative
findings: (1) existing laws do not adequately prevent and remedy
gender-related violence which disproportionately occurs against
women; (2) sexual abuse harms many women, children, and
families, and is often not reported to the authorities or
prosecuted; (3) that acts of domestic violence and sexual abuse
on the basis of gender constitute a form of sexual
discrimination; (4) all persons within California have the right
to be free from crimes of violence motivated by gender; and (5)
that the purpose of this act is to protect the civil rights of
victims of gender-motivated violence and thereby to promote the
public safety, health, and well-being of all persons within
California.
Generally, Section 52.4 permits a person injured by a crime of
violence motivated by gender to bring a civil action for various
types of relief against the responsible party, as long as it is
AB 830
Page 7
brought within the later of the following possible statutes of
limitations: (1) three years of the act; (2) if the victim was
a minor when the act occurred, within eight years after the date
the plaintiff attains the age of majority; or (3) within three
years after the date the plaintiff discovers or reasonably
should have discovered the psychological injury or illness
occurring after the age of majority that was caused by the act.
Gender violence for these purposes includes either an act 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, or a physical
intrusion or invasion of a sexual nature under coercive
conditions.
This bill now adds a definition of "gender" for these purposes
and conforms it to the definition of that same term under the
Unruh Civil Rights Act (which defines the term to mean sex and
to include a person's gender identity and gender expression, as
those terms are further defined). This bill also adds a new
section that will make available to victims of sexual
orientation-based violence the same Section 52.4 remedies
currently provided to victims of gender-related violence.
Comment
According to the author:
Civil Code [Sec.] 52.4 provides protection for victims of
gender violence by permitting a person who has been subjected
to gender violence to bring a civil action for damages against
any responsible party and defines gender violence for this
purpose as a crime of violence motivated by the gender of the
victim or a physical intrusion or invasion of a sexual nature,
as specified. "Gender" is not defined for purposes of the
section.
The Unruh Civil Rights Act (Civil Code [Sec.] 51) prohibits
discrimination based on a person's sex, race, religion, or
AB 830
Page 8
sexual orientation, among others, and specifies that sex
includes gender. In 2011, the Act - along with many other
statutory provisions (not including [Sec.] 52.4) was amended
to specify that "gender" includes a person's gender identity
and gender expression.
The Ralph Act (Civil Code [Secs.] 51.7 and 52) provides that
it is a civil right for a person to be free of violence or its
threat against the person or his or her property, because of a
person's race, color, religion, ancestry, national origin,
political affiliation, sex, sexual orientation, age or
disability or position in a labor dispute, or because a person
is perceived to have one or more of these characteristics.
"Sex" for purposes of the Ralph Act takes its definition from
reference to the Unruh Act, and therefore includes gender,
which includes a person's gender identity and gender
expression.
AB 830 would conform the definition of "gender" in the
anti-gender violence statute, Civil Code [Sec.] 52.4, to the
definition in the Unruh Act and numerous other places in
statute, so that it, too, 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified6/23/15)
Conference of California Bar Associations (source)
American Federation of State, County and Municipal Employees,
AFL-CIO
Bay Area Lawyers for Individual Freedom
California Communities United Institute
California Women Lawyers
AB 830
Page 9
California Women's Law Center
Consumer Attorneys of California
Equality CA
Equal Rights Advocate
Legal Aid Society
National Association of Social Workers
Transgender Law Center
Women Lawyers Association of Los Angeles
OPPOSITION: (Verified6/23/15)
None received
ARGUMENTS IN SUPPORT: The sponsor of this bill, the
Conference of California Bar Associations (CCBA) writes that
while AB 887 (Atkins, Chapter 719, Statutes of 2011) refined the
definition of "gender" to include gender identity and gender
expression in other sections, it did not include Section 52.4 of
the Civil Code among the provisions that it updated. CCBA
writes:
AB 830 will correct this oversight by specifying that "gender"
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. In light of the violence and bullying inflicted
upon LGBT individuals, this additional protection is needed
and overdue.
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 [HRC], "The level of violence targeting
transgender people, particularly transgender women of color,
is a national crisis that the LGBT movement has a
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
Page 10
The National Center for Lesbian Rights (NCLR) reports that
"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 [percent] of transgender
people have experienced sexual assault in their lifetime."
AB 830 will provide transgender and other LGBT individuals
with an important tool to fight against violence.
ASSEMBLY FLOOR: 74-0, 5/14/15
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,
Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau,
Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,
Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo
Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove,
Hadley, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer,
Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes,
McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell,
Olsen, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,
Waldron, Weber, Wilk, Williams, Wood, Atkins
NO VOTE RECORDED: Brough, Beth Gaines, Harper, Mathis,
Melendez, Patterson
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
6/25/15 9:01:06
**** END ****