by Dale Hudson
Effective January 1, 2004, California added yet another category to the list of classes protected under the state’s antidiscrimination law: “gender,” or, as it is more commonly described, gender identity. With the passage of Assembly Bill 196, the California Fair Employment and Housing Act (FEHA) was amended to prohibit California employers who employ five or more employees from discriminating against (or harassing) transsexual and transvestite employees and applicants.
California joins the handful of states and municipalities that prohibit discrimination against transgender individuals. However, the California Legislature selected a rather odd manner of legislating this new rule. Rather than expressly prohibiting discrimination against transgender individuals, the Legislature amended FEHA to expand the definition of “sex,” which is, of course, already listed as a protected category. As amended, FEHA now states that sex is defined to include “a person’s gender.” FEHA then incorporates a somewhat unusual definition of “gender” that appears in the California Penal Code. Under this definition, gender is defined as (1) an employee’s actual sex, (2) an employer’s perception of an employee’s sex and (3) an employee’s “identity, appearance or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the [employee’s] sex at birth.” (The FEHA definition includes applicants in addition to employees.) Thus, in California it is now illegal to discriminate against an employee or applicant who has undergone a sex change operation or who dresses or behaves in a manner inconsistent with his or her “sex at birth.”
The new law does not impair the right of employers to require employees to adhere to “reasonable workplace, grooming and dress standards.” However, an employer must allow an employee to dress in a manner consistent with the employee's gender identity.
Assembly Bill 196 raises a number of practical issues. One example is which restroom a transvestite or preoperative transsexual should use. Most doctors require that individuals desiring sex change operations spend several months dressing in a manner consistent with their prospective postoperation gender before they will perform the surgery. During this preparatory period, other employees of both sexes may be uncomfortable sharing their restroom with, e.g., a man dressed as a woman. Assembly Bill 196 offers no guidance for this difficult issue.
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