BILL ANALYSIS Ó
AB 830
Page 1
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