BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 887
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 887 (Atkins)
          As Amended August 17, 2011
          Majority vote 
           
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          |ASSEMBLY:  |54-24|(May 16, 2011)  |SENATE: |25-13|(August 30,    |
          |           |     |                |        |     |2011)          |
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           Original Committee Reference:    JUD.  

           SUMMARY  :  Seeks to clarify the definition of gender in certain 
          anti-discrimination laws to expressly include the terms "gender 
          identity" and "gender expression" where only the term "gender" 
          currently appears.  Specifically,  this bill  :  

          1)Expressly adds the terms "gender identity" and "gender 
            expression" to various provisions that define sex as including 
            gender. 

          2)Defines "gender expression" as meaning a person's 
            gender-related appearance and behavior whether or not 
            stereotypically associated with the person's assigned sex at 
            birth. 

          3)Expressly adds the terms gender, gender identity, and gender 
            expression as among the enumerated characteristics under 
            various provisions of the law that require equal rights and 
            opportunities and prohibit discrimination based on specific 
            enumerated characteristics. 

          4)Requires an employer to allow an employee to appear or dress 
            consistently with the employee's gender expression, in 
            addition to with the employee's gender identity. 

           The Senate amendments  make technical corrections and add 
          language to resolve conflict issues with AB 440 (Brownley) and 
          SB 559 (Padilla).
           
          EXISTING LAW  :

          1)Contains various provisions that define sex as including 
            gender and defines gender as including a person's gender 
            identity and gender related appearance and behavior whether or 








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            not stereotypically associated with the person's assigned sex 
            at birth.  

          2)Contains various provisions that require equal rights and 
            opportunities in different areas including education, housing, 
            and employment, regardless of gender.  

          3)Prohibits discrimination based on specified enumerated 
            characteristics, including sex and gender.  

          4)Authorizes the Fair Employment and Housing Commission and the 
            Department of Fair Employment and Housing to perform certain 
            functions to eliminate discrimination in employment and 
            housing on the basis of sex and other enumerated 
            characteristics.  

          5)Requires an employer to allow an employee to appear or dress 
            consistently with the employee's gender identity.  

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar 
          to the version approved by the Senate.

           FISCAL EFFECT  :  According to the Senate Appropriations 
          Committee, pursuant to Senate Rule 28.8, negligible state costs.
           
          COMMENTS  :  This bill, sponsored by Equality California and 
          Transgender Law Center, seeks to reduce confusion among those 
          who bear the responsibility of ensuring that current 
          anti-discrimination laws are enforced.  The measure would make 
          non-substantive changes to the definition of gender in certain 
          anti-discrimination laws by expressly adding the terms "gender 
          identity" and "gender expression" where only the term "gender" 
          currently appears, and would define gender expression as meaning 
          a person's gender-related appearance and behavior whether or not 
          stereotypically associated with the person's assigned sex at 
          birth. 

          California law has long afforded broad protection against 
          unreasonable, arbitrary, or invidious discrimination based on 
          irrelevant differences between men and women.  In 1959 the 
          California Legislature enacted the most ardent codification of 
          these broad principals with the passage of the Unruh Civil 
          Rights Act (the Unruh Act).  The Unruh Act originally did not 
          expressly mention all grounds of impermissible discrimination, 
          and the Act was subsequently amended in 1974 to explicitly 








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          prohibit arbitrary discrimination based on sex.  

          While the Unruh Act does not expressly mention gender identity 
          or gender expression as a ground of discrimination in which 
          business establishments in California are forbidden to engage, 
          the Supreme Court has rejected the argument that the Unruh Act's 
          ban on discrimination reaches only the classifications expressly 
          specified in the Act's text.  (See Harris v. Capital Growth 
          Investors XIV (1991), 52 Cal.3d 1142, 1154-55.)  Instead, the 
          courts have made it clear that the Unruh Act also prohibits 
          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.) 

          Exiting law defines gender as "sex" and includes a person's 
          gender identity and gender-related appearance and behavior 
          whether or not stereotypically associated with the person's 
          assigned sex at birth.  The author of the bill further 
          clarifies, "Gender identity refers to a person's deeply felt 
          internal sense of being male or female.  Gender expression 
          refers to one's behavior, mannerisms, appearance and other 
          characteristics that are perceived to be masculine or feminine." 
           While the Unruh Act and other similar anti-discrimination 
          statutes protect non-enumerated classifications such as 
          transgendered Californians, this fact is not always known by 
          those the law was intended to protect, or by employers, housing 
          authorities, and others vested with the responsibility of 
          ensuring that current anti-discrimination laws are enforced. 

          The author introduced this bill to reduce uncertainty and 
          ambiguity in this regard.  She notes: 

               AB 887 will take existing protections based on gender 
               identity and expression and specifically list them as 
               protected categories in our anti-discrimination laws. By 
               making these protections explicit, people will more clearly 
               understand California's anti-discrimination laws, which may 
               increase the likelihood that employers, housing 
               authorities, schools, etc. would work to prevent 
               discrimination and/or respond more effectively and 
               expeditiously at the first indications of discrimination. 
               The Gender Nondiscrimination Act will make clear that 
               discrimination based on failure to conform to narrow gender 
               stereotypes is against the law.









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               Nearly 70% of transgender Californians have experienced 
               discrimination or harassment at work. Californians who 
               experience discrimination based on gender identity and 
               gender expression at work or elsewhere often times do not 
               file complaints because they are unaware that they are 
               protected. Existing anti-discrimination laws are confusing 
               and vague for employers, housing authorities and others who 
               bear the responsibility of ensuring that the laws are 
               enforced. Therefore, the harms caused by discrimination can 
               be reduced by simply using language that is direct and 
               easily understood. AB 887 makes our anti-discrimination 
               laws clearer and stronger by adding gender identity and 
               gender expression to the list of protected categories.

          
          Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334 


          FN: 0001994