BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 830


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          830 (Eggman)


          As Amended  June 23, 2015


          Majority vote


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          |ASSEMBLY:  | 74-0 | (May 14,      |SENATE: |37-0  | (July 9, 2015)  |
          |           |      |2015)          |        |      |                 |
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          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.









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          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  








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            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  








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          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