BILL ANALYSIS Ó AB 830 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 830 (Eggman) As Amended June 23, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: | 74-0 | (May 14, |SENATE: |37-0 | (July 9, 2015) | | | |2015) | | | | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. 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)Defines the term "gender" to include a person's gender identity and gender expression. 2)Allows any person who has been subjected to sexual orientation violence to bring a civil action for damages against any responsible party. The Senate amendments move the new civil action for sexual orientation violence, which was in this bill when it passed out of the Assembly, into a new section of the Civil Code. AB 830 Page 2 EXISTING LAW: 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 gender and defines "gender" to mean sex and include a person's AB 830 Page 3 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 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 AB 830 Page 4 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 Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, 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, Centers for Disease Control and Prevention, National Center for Injury Prevention and Control (Atlanta), 2013.) Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334FN: 0001071