Governor Signs Bill
Prohibiting Gender Identity Discrimination
On
August 3, 2003, Gov. Gray Davis signed a bill outlawing discrimination on
the basis of gender identity and thus revising the California Fair
Employment and Housing Act (FEHA). AB 196 was introduced by Assemblyman
Mark Leno D San Francisco, and was sponsored by Equality California.
California is now the
fourth state to ban discrimination against transgender employees. The three
other states that have enacted laws prohibiting discrimination on the basis
of gender identity are Minnesota, Rhode Island, and New Mexico. Courts and administrative
agencies in five additional states - Connecticut,
Hawaii, Massachusetts,
New Jersey and New
York - and the District
of Columbia have interpreted either their sex or
disability discrimination statutes to protect transgender people in some
circumstances.
The
Department of Fair Employment and Housing was already accepting and
investigating cases involving gender identity discrimination.
The
legislation applies to employers with five or more employees. It does not
apply to non-profit religious corporations.
There
is no federal law that prohibits workplace discrimination based on gender
identity. An organization called the Human Rights Campaign, the largest
national lesbian and gay political organization, is working to develop a
federal measure that would likewise prohibit discrimination based on gender
identity.
AB 196 Includes Gender Identity In
Definition of Sex
The
bill extends FEHA's prohibition against
discrimination to that based on perceptions of an individual's gender,
regardless of whether the perceived gender characteristics are different
from those traditionally associated with the individual's sex at birth.
Existing
law under FEHA prohibits discrimination on the basis of sex. This bill
provides that for purposes of FEHA the term "sex" shall include a
persons gender as that term is defined in the
Penal Code hate crimes statute. "Gender" for purposes of the hate
crimes statute includes a person's identity, appearance, or behavior
whether or not that identity, appearance or behavior is different from that
traditionally associated with the person's sex at birth. It also covers the
"perception" of a person's identity, appearance or behavior.
Employers Can Enforce Dress Code Standards
The
bill permits employers to require employees to adhere to reasonable
workplace appearance, grooming and dress standards consistent with state or
federal law, provided that employees are allowed to appear or dress
consistently with their gender identity.
This
provision is a first-of-its-kind provision in a statewide transgender
non-discrimination law.
Support for the Bill
The
sponsors of the bill, Equality California, argued that discrimination in
housing and employment based on gender identity and expression is a serious
problem. They cite a recent survey by the San Francisco Department of
Public Health that found that most transgender people have experienced
"loss of employment, denial of employment, or underemployment."
The unemployment rate for those surveyed was 70%.
Many
transgender employees who are just coming out or who are in the process of
transitioning from one gender to another quit their jobs because of
harassment or fear of harassment, ignorance, and lack of employer and
co-worker support.
Recently,
the story of a local Sacramento
teacher brought the issue to the limelight. Dana Rivers was teaching high school
in Sacramento
when she began her transition from male to female. Although she had the
support of many students, colleagues and community members, she was
suspended from teaching pending a hearing. Her case garnered nationwide
attention, including appearances on The Oprah Winfrey Show and ABC News.
Rivers ultimately accepted a settlement in exchange for her resignation,
and is now a national spokesman for gender rights.
Many
companies had already begun to address the issue of transgender employees
even prior to the legislation. In 2002, the Human Rights Commission awarded
100 percent scores to 13 companies who included gender identity in their
non-discrimination policies. These companies were: Aetna Inc.; American
Airlines; Apple Computer, Inc.; Avaya Inc.; Eastman Kodak Co.; Intel Corp.;
J.P. Morgan Chase & Co.; Lucent Technologies, Inc.; NCR Corp.; Nike
Inc.; Replacements, Ltd.; Worldspan, L.P.; and
Xerox Corp.
Concerns from Opposition
Opponents
of the legislation were concerned regarding the definition's breadth.
Opponents argued that AB 196 would establish that gender identity
discrimination occurs when someone believes that a supervisor or co-worker
is uncomfortable with or disapproves of the way the other person does or
does not exhibit traits stereotypically associated with his or her sex.
These traits may include a person's personality, clothing, hairstyle,
speech, mannerisms, demeanor, or other characteristics such as vocal pitch,
facial hair, or the size or shape of a person's body. Opponents also
believed that regulating the workplace using a criminal definition designed
for prosecution of hate crimes is inappropriate due to the differing
thresholds of evidence in the Penal code (much more stringent) versus the
state Government Code (much less stringent).
Opposition
also came from traditional family value groups who argued that the bill
would apply to schools districts and child care facilities and would have a
detrimental affect on children.
Tips for Employers
Employers
with five or more employees will need to comply with AB 196. The following
are some tips:
- Revise employee handbooks to include gender
identity in the list of categories protected from discrimination;
- Inform
employees that discriminating against another employee because of
perceptions regarding that employee's gender identity is unlawful.
- Allow
employees to appear or dress consistent with their gender identity,
while at the same time enforcing professional standards of dress,
appearance and grooming;
- If
directly facing the issue at work, educate employees by collaborating
with organizations that train in this area. Also, meet with a
transitioning employee to assess his or her needs and concerns;
- Consider
restroom access issues if there are transgender employees in the
workplace. One solution is a "family" restroom often seen in
amusement parks or airports. These are generally single stall
restrooms that would provide privacy to the transgendered
employee.
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