The new year has seen quite a package of laws supporting transgender employment rights in the work place come into force in California. This is crucially important because the protected status of gender identity under Title VII has gone from a cause championed by the Equal Employment Opportunity Commission (EEOC) for nearly a decade, growing as a right within the courts, to seeing support for the protection from the White House and its executive agencies slip away.
The courts, and the EEOC as well to a degree, still show a trend towards supporting these rights. However, their protection at a federal level has slipped in certainty.
This slip in federal protection means that it has fallen on the states to codify the sort of protection offered based on gender identity and make it known that that protection is available in their state.
In California, the last year or so has seen a flurry of activity on this front–most recently seeing a package of laws take effect on January 1st of this year. Let’s look at the new protections California has extended to its transgender citizens.
The first of the two substantial changes to take effect in January was SB 396–requiring employers to post transgender rights explanations in the workplace. It also requires employers with 50 or more employees to include an understanding of gender identity, gender expression, and sexual orientation in their pre-existing mandatory sexual harassment prevention training.
The poster, titled “Transgender Rights in the Workplace,” covers several topics including defining terms under the law and explaining the rights associated with gender identity. The poster itself can be viewed here.
The law requires all employers to put the posters up in prominent positions. The poster itself covers some important legal elements to understanding both your rights as a transgender person and the type of actions that will get a coworker and/or employer in hot water. First, it makes it clear that gender identity and gender expression are protected characteristics under California law.
This means that any discrimination in hiring or employment actions (as well as housing offerings) is a violation of the law. This basically includes any adverse employment action–refusing to hire, refusing to promote, firing, or even intentionally giving less favorable duties–is illegal if it is done based on stereotypes about gender, gender identity, etc.
This even includes situations where an employer perceives somebody as transgender or gender nonconforming and acts on this belief, even if the person if not in fact transgender. Transgender is defined under California law as a person whose gender identity differs from the sex assigned to them at birth. Gender expression, on the other hand, is defined as gender related appearance and behavior not stereotypically associated with a person’s sex assigned at birth.
The poster also makes clear what is and isn’t allowed on the part of an employer. Interviewers and hiring employers can ask about the usual references and employment history that you would expect in the hiring process.
However, leading questions seeking gender identity are out. The includes but is not limited to “marital status, spouse’s name, or relation of household members to one another. They are also not allowed to ask about a person’s body or whether they have already or intend to get reassignment or other surgery related to gender identity.
There some additional considerations under the law for dress codes, bathrooms, showers, and locker room facilities. Under California law, employers can only enforce dress codes in a non-discriminatory manner. This means dress codes in general are allowed but restrictions on dress and grooming must be applied in a manner that allows transgender or gender non-conforming employees to dress “in accordance with their gender identity and gender expression.”
Any employer must allow transgender or gender non-conforming people to use the restroom or locker room associated with their gender identity or expression. Where possible, an employer must provide a unisex single stall bathroom.
However, they cannot force and employee to use such a bathroom as opposed to the bathroom of their gender identity. It is illegal to require or push a transgender employee to use such a bathroom either by policy or through harassment. In addition to this, California law requires that any single-user bathrooms be identified as unisex unless it has a special exemption from elsewhere in the law.
How WIll AB 1556 Change the Language of Law?
In addition to requiring employers to post these new legal protections for transgender and gender non-conforming employees, California has also updated the language of the Fair Employment and Housing Act (the law which contains California’s Title VII equivalent) to use gender non-binary language.
AB 1556 replaced all instances of “her,” “she,” and other similar terms from gender discrimination and other elements of FEHA. This was done to make it clear that gender identity and gender non-conformance is indeed protected under the Act.
The Takeaway: Transgender Rights are Largely in the Hands of the States
The current administration and its agencies have, to put it lightly, not made transgender rights their priority. A more critical view would be that they have actively rolled back the clock on gender identity rights built up over the last decade.
While the courts and the EEOC generally support the notion of gender identity as protected under sexual discrimination laws, it is generally in the hands of the states to pass any genuine law on the issue given the positions of the White House and the current Congress on the issue. This is especially true when comes to classifying gender identity as its own protected characteristic as opposed to bundling it in with sex discrimination.
It’s incredibly important that states take steps like those California has taken here. Hate crimes against transgender persons have rose in numbers in both 2016 and 2017–many of these incidents ending in fatal violence. Gender identity is something deserving of its own protected class. For now, state laws like these are the most likely route to such protection.
Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure.