On October 9, 2011, Governor Jerry Brown signed into law AB 887, which prohibits discrimination based on “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The law will take effect on January 1, 2012.
Current California laws already protect employees from discrimination based on gender identity and gender expression because California non-discrimination laws define “gender” to mean sex, including a person’s “gender identity” (how they see themselves) and “gender expression” (how other people see them) (Education Code 66260.7 and Penal Code 422.56). However, “gender identity and expression” do not currently appear as a specific categories within California’s various non-discrimination laws, but now AB 887 will place “gender identity and expression” alongisde other protected categories in the state’s non-discrimination laws, which should assist employers in effectively addressing discrimination against transgender people.
The bill adds language to several anti-discrimination statutes, including sections of the Fair Employment and Housing Act, to define the term “sex”, which includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth; and “sex” also includes, but is not limited to, a person’s “gender”; “gender” means sex, and includes a person’s “gender identity” and “gender expression”; “gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. Thus, AB 887 will clarify law by directly adding “gender identify” and “gender expression” to the list of protected classes.
Existing law requires an employer to allow an employee to appear or dress consistently with the employee’’s “gender identity”. This bill would additionally require an employer to allow an employee to appear or dress consistently with the employee’’s “gender expression”.
If the claims under investigation so warrant, workplace investigators may want to consider checking employment posters, employee handbooks, etc. as part of making a factual determination during a gender identity or gender expression discrimination investigation post-2011.