BILL ANALYSIS SENATE JUDICIARY COMMITTEE Martha M. Escutia, Chair 2003-2004 Regular Session AB 196 A Assembly Member Leno B As Amended March 26, 2003 Hearing Date: June 17, 2003 1 Government Code 9 GMO:rm 6 SUBJECT Gender Discrimination DESCRIPTION This bill would import the definition of "gender" from hate crimes statutes that prohibit violence against any person on the grounds of gender or perceived gender into the Fair Employment and Housing Act (FEHA), thereby extending the FEHA 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. The bill would permit employers to require employees to adhere to reasonable workplace appearance and standards consistent with state or federal law, provided that employees are allowed to appear or dress consistently with their gender identity. BACKGROUND AB 196 resurrects AB 1649 (Goldberg, 2001, died on the Senate Inactive File), which contained almost identical language. Sponsored by the same group, the California Alliance for Pride and Equality, AB 196 seeks to prohibit discrimination in housing and employment based on gender stereotypes and to extend the protections of existing anti-discrimination laws to transsexual and transgender individuals. (more) AB 196 (Leno) Page 2 CHANGES TO EXISTING LAW Existing law , the Fair Employment and Housing Act (FEHA), prohibits employment and housing discrimination based on sex and sexual orientation, as well as race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or age, as those terms are defined. [Government Code Sections 12920 et seq.] Existing law defines prohibited acts of discrimination to include the firing of or refusal to hire an individual based on the individual's sex, harassing an individual based on their sex, refusing to sell or rent housing to an individual based on their sex, and setting terms of lending for an individual based on their sex. Existing law defines "sex" as including, but not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth, and "sexual orientation" as heterosexuality, homosexuality, and bisexuality. Existing law defines "gender," for purposes of the hate crimes statutes prohibiting violence against another or to interfere with another's exercise of civil rights, as the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the victim's sex at birth. [Penal Code Section 422.76.] This bill would provide that for the purposes of FEHA, the term "sex" shall include a person's gender, as that term is defined in Penal Code Section 422.76. This bill would permit an employer to require an employee to adhere to reasonable workplace appearance, grooming and dress standards not precluded by state or federal law, provided the employee is allowed to appear or dress consistently with the employee's gender identity. COMMENT AB 196 (Leno) Page 3 1. Stated need for the bill According to the sponsor, "[d]iscrimination is wrong and hurts all Californians, especially when it is based on characteristics like gender identity or expression that have nothing to do [with] one's qualifications as an employee or a tenant. This bill will provide protection to those who are fired, evicted, or harassed every day because they exhibit traits not stereotypically associated with their sex at birth. Such traits may include a person's personality, clothing, hairstyle, speech, mannerisms, or demeanor; they may also include a person's characteristics such as vocal pitch, facial hair, or the size and shape of a person's body. This will protect men who are seen as "too feminine" and women perceived as "too masculine." 2. Gender-based hate crime punishable under California law; bill would extend protection to discriminatory practices in housing and employment In California, no person may injure or threaten another on the basis of that person's gender or perceived gender, whether the person's appearance, identity or behavior conforms to what is traditionally associated with that person's sex at birth. [Penal Code Section 422.6.] Other "hate crimes" statutes prohibit offenses against individuals on the same basis. Both federal and state anti-discrimination laws prohibit discrimination on the basis of sex. Although the statutes have used only the words "sex" and "sexual orientation," case law has interchangeably used the words "sex" and "gender." Thus, the U.S. Supreme Court in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989) ruled that the employer unlawfully discriminated against an employee on the basis of sex by consciously giving credence and effect to Price Waterhouse partners' comments about her that resulted from sex stereotyping. "Congress' intent to forbid employers to take gender into account in making decisions appears on the face of the statute?We take these words to mean that gender must be irrelevant to employment decisions." [ Price Waterhouse , AB 196 (Leno) Page 4 supra, at 240.] This bill would import the definition of "gender" under the Penal Code statutes into the definition of "sex" in the Fair Employment and Housing Act, thereby prohibiting discriminatory practices in housing and employment on the basis of one's gender or perceived gender. Thus, the bill would cover discrimination based on gender stereotyping as well as discrimination against transsexual and transgender individuals. Supporters of this bill argue that although the courts, as well as the Department of Fair Employment and Housing, have interpreted sex discrimination laws to include gender as a protected characteristic, "it is critically important to codify these protections in the law. Without AB 196, the individuals who most need these protections may not understand they are protected, and employers and others may be unaware that this type of discrimination is prohibited." [Letter from National Center for Lesbian Rights, March 12, 2003.] Another supporter, the Human Rights Campaign, contends that AB 196 will help businesses and property owners, as well as employees and tenants, by explicitly clarifying the legal expectations of employers and landlords. 3. Employers may still require reasonable dress and appearance, but must allow employees to dress consistent with gender identity This bill would specifically permit employers to require that an employee adhere to reasonable workplace appearance, grooming and dress standards that are not otherwise precluded by other state or federal law, provided the employer allows the employee to appear or dress consistently with the employee's gender identity. a. Bill would allow transsexuals or transgenders to dress according to their gender identity One criticism of AB 1649 (Goldberg), which merely AB 196 (Leno) Page 5 imported the hate-crimes definition of gender into the FEHA, was that it was too broad in scope, and that it would have given employees unrestricted freedom to dress as they pleased. This provision of the bill, which clearly allows employers to require reasonable dress and appearance, should take care of concerns raised by opponents that the importation of the definition of "gender" from the Penal Code to the FEHA could result in a person dressing as one sex one day and of the opposite sex another day, or a man dressing as a woman and a woman dressing as a man, as long as he or she is well-groomed. Supporters argue that individuals who claim a different gender from day to day, or who do so simply in jest or to be disruptive, do not meet the criteria for transsexuality. Webster's New World Dictionary defines "transsexual" as "a person who is predisposed to identify with the opposite sex, sometimes so strongly as to undergo surgery and hormone injections to effect a change of sex." It would be up to the trier of fact to determine if an individual meets this standard or other standard that is consistent with the author's intent. Supporters argue that it would be most unlikely that day-to-day changes or changes in jest in gender identity would be covered by this bill. According to a recent survey by the Transgender Law Center, nearly one in every two respondents had experienced discrimination in employment and housing. A 1999 study by the San Francisco Department of Public health states that most transgender people have experienced various types of employment discrimination and are disproportionately driven into poverty. The study further reveals that the unemployment rate for transgender people in San Francisco is 70%. This bill is intended to offer protection to transgender individuals. However, it would also benefit any person who does not possess traits or conduct themselves in ways stereotypically associated with his or her sex. Thus, this bill would protect a female employee from being implored to "walk more femininely, talk more femininely, dress more AB 196 (Leno) Page 6 femininely, wear make-up, have her hair styled, and wear jewelry" in order to be promoted to partner in an accounting firm. [ Price Waterhouse , supra, quoting the appellate court at 618 F. Supp., at 1117.] b. Opponents claim that bill would burden businesses Concerns of the bill's opponents are not assuaged by this provision allowing an employer to require reasonable dress and appearance at the workplace. The Chamber of Commerce, for example, contends that importing the definition of gender from the Penal Code into the workplace "would make almost any comment, look, or action between workers a potential prohibited act protected under FEHA?This bill would be especially onerous for employers because regulating the workplace is significantly different than the hate crime situations under which this definition was developed." They cite the fact that the workplace is already highly regulated and employee protection from physical violence is already covered under the Labor Code. Further, they state, the elements of evidence necessary to successfully prosecute under the Penal Code is significantly more stringent than FEHA. Lastly, the Traditional Values Coalition contends that "transgendered school teachers and employees could have a detrimental effect on a student's natural gender identity. This bill seeks to challenge the norms of society through the force of law." Support:Lieutenant Governor Cruz Bustamante; AIDS Project East Bay; AIDS Project Los Angeles; AIDS Legal Referral Panel (ALRP); Alice B. Toklas Lesbian Gay Bisexual Transgender Democratic Club; American Civil Liberties Union; American Federation of State, County and Municipal Employees, AFL-CIO; Anti-Defamation League; Bay Area Lawyers for Individual Freedom; Billy DeFrank Lesbian Gay Bisexual Transgender Community Center of Silicon Valley; Board of Supervisors, City and County of San Francisco; Bunny Inc.; California Apartment AB 196 (Leno) Page 7 Association; California Chapter of the National Association of Social Workers; California Church Impact, Public Policy Coordinator; California Commission on the Status of Women; California Independent Public Employees Legislative Council; California Labor Federation; California Independent Public Employees Legislative Council; California Professional Firefighters; California National Organization for Women; California School Employees Association; California State Employees Association; California Teachers Association; California Women's Law Center; Catholic War Veterans of the United States, Coachella Valley Chapter; Charles Zukow Associates; Chinese for Affirmative Action; City of San Francisco; City of Santa Cruz; Donordigital; East Bay Community Law Center; Eleanor Roosevelt Democratic Club; Elections Committee of the County of Orange; Equal Rights Advocates; Eviction Defense Collaborative; Friends Committee on Legislation; FTM International; Gay-Straight Alliance Network; Golden Gate Business Association; Greater San Diego Business Association; Harvey Milk Lesbian Gay Bisexual Transgender Democratic Club; Housing California; Housing Rights Committee of San Francisco; Human Rights Campaign; Human Rights/Fair Housing Commission of the City and County of Sacramento; Human Rights Commission of the City and County of San Francisco; Lambda Legal; Lambda Letters Project; L.A. Gay and Lesbian Center; Mexican American Legal Defense and Education Fund; Mossinger Consulting; National Center for Lesbian Rights; National Gay and Lesbian Task Force; National Transgender Advocacy Coalition; New Leaf Services For Our Community; Northern California Nevada Conference of the United Church of Christ; Olivia Cruises and Resorts; Orange County Transgender Taskforce; SAF-T Corporation; San Diego TransFamily; Santa Barbara Women's Political Committee; San Francisco Tenants Union; Senior Housing Action Collaborative; Service Employees International Union (SEIU); Southern California HIV Advocacy Coalition; Southern California Nevada Conference United Church of Christ; Spectrum Magazine; Stonewall Democratic Club of Greater Sacramento; The Center San Diego County; The Legal AB 196 (Leno) Page 8 Aid Society; The "Ministry In Action Commission" of St. Mark's United Methodist Church; Toltec Center of Creative Intent; Transgender Law Center; Women's Employment Rights Clinic of Golden Gate University; Woodenship; several individuals Opposition:California Chamber of Commerce; California Employment Law Council; California Manufacturers & Technology Association; Committee on Moral Concerns; Eagle Forum of California; Irvine Chamber of Commerce; Traditional Values Coalition; Women Volunteer in Politics; several individuals HISTORY Source: California Alliance for Pride and Equality (CAPE) (sponsor) Related Pending Legislation: None Known Prior Legislation: AB 1649 (Goldberg, 2001). Passed by Senate Judiciary Committee, but died on the Senate Inactive File. Prior Vote: Asm. L.&E. (Ayes 6, Noes 1); Asm. Appr. (Ayes 17, Noes 8); Asm. Flr. (Ayes 42, Noes 34) **************