BILL ANALYSIS
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THIRD READING
Bill No: AB 196
Author: Leno (D), et al
Amended: 3/26/03 in Assembly
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 6/17/03
AYES: Escutia, Cedillo, Ducheny, Kuehl, Sher
NOES: Morrow, Ackerman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 42-34, 4/21/03 - See last page for vote
SUBJECT : Gender discrimination
SOURCE : California Alliance for Pride and Equality
DIGEST : This bill imports 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.
This bill permits 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
CONTINUED
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identity.
ANALYSIS : Existing law, 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.
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.
This bill provides 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 permits 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.
Prior Legislation
AB 1649 (Golderg), 2000-01 Session . Died on the Senate
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Inactive File.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/14/03)
California Alliance for Pride and Equality (source)
Lieutenant Governor Cruz Bustamante
AIDS Project East Bay
AIDS Project Los Angeles
AIDS Legal Referral Panel
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 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
Commission on the Status of Women
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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
Southern California HIV Advocacy Coalition
Southern California Nevada Conference United Church of
Christ
Spectrum Magazine
Stonewall Democratic Club of Greater Sacramento
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The Center San Diego County
The Legal 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 : (Verified 7/14/03)
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
ARGUMENTS IN SUPPORT : 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."
ARGUMENTS IN OPPOSITION : 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
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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."
According to the Campaign for California Families, the bill
"?clearly states that 'an employer shall allow an employee
to appear or dress consistently with the employee's gender
identity.' This means crushing a business's standards of
decency and allowing male employees to wear women's clothes
and wigs in front of customers and children - at a Bible
bookstore, a Boy Scout office, a childcare center, a
restaurant, a hotel, an elementary school classroom, etc."
ASSEMBLY FLOOR :
AYES: Berg, Bermudez, Calderon, Canciamilla, Chan, Chavez,
Chu, Cohn, Corbett, Diaz, Dutra, Dymally, Firebaugh,
Frommer, Goldberg, Hancock, Jackson, Kehoe, Koretz,
Laird, Leno, Levine, Lieber, Liu, Longville, Lowenthal,
Montanez, Mullin, Nation, Negrete McLeod, Nunez, Oropeza,
Pavley, Ridley-Thomas, Salinas, Simitian, Steinberg,
Vargas, Wiggins, Wolk, Yee, Wesson
NOES: Aghazarian, Bates, Benoit, Bogh, Campbell, Cogdill,
Correa, Cox, Daucher, Dutton, Harman, Haynes, Shirley
Horton, Houston, Keene, La Malfa, La Suer, Leslie,
Maddox, Maldonado, Maze, McCarthy, Mountjoy, Nakanishi,
Pacheco, Parra, Plescia, Reyes, Richman, Runner,
Samuelian, Spitzer, Strickland, Wyland
RJG:cm 7/16/03 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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