Updates to California’s Transgender Anti-Discrimination Definitions

Earlier this year, the Department of Fair Employment and Housing (FEHA) updated certain sections of the California Code of Regulations dealing with gender expression in the workplace. Known as a rulemaking action by the Fair Employment and Housing Council (FEHC), the updates went into effect this past July.

This article was written to briefly discuss some of these changes and how they affect California workers. If you believe your rights as a worker were violated by an employer, consider scheduling a consultation with our office.

Transgender Symbol

The Updates

The specific rules updated by FEHC are found in Title 2 of the California Code of Regulations. Many of the updates contained in the code focus on the definitions dealing with gender in the workplace. What these new updates do, is to provide a broader framework for understanding these concepts, and extend broader protections to transgender workers.

Continue reading to learn about specific updates to the following terms:

Gender Expression

The new definition of gender expression refers to a person’s gender-related appearance regardless of whether it’s stereotypically associated with the sex assigned at birth. The definition has been updated to include the perception of gender-related appearance or behavior. This means a worker is protected from harassment, even if their gender expression is perceived by a harasser as not coinciding with the harassed worker’s sex at birth.

Gender Identity

The definition of gender identity has been elaborated upon, and made subtler. Instead of merely referring to the way a person identifies (whether man or woman), the new definition covers a person’s “internal understanding” of their gender. This can include male, female, a combination of the two, or neither male or female. It can also include a gender not assigned to a person at birth.

Sex stereotype

This definition, which originally focused on assumptions about a person’s appearance or behavior has been updated to include “gender roles, gender expression, or gender identity.” The definition of sex stereotype focuses on how these qualities relate to an individual’s ability or inability to perform certain kinds of work, whether “based on a myth, social expectation, or generalizations about the individual’s sex.”

Transitioning

This is a new term being defined in the California Code, and consists of the following:

“A process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering) or undergoing hormone therapy, surgeries, or other medical procedures.

Updates to Working Conditions

In addition to updates on the definitions involving sex and gender, there have been a number of changes made to the rules governing working conditions. These include the following:

Restrooms

Employers are now required to let workers use restroom facilities that correspond to the employee’s gender identity or gender expression. The employee is allowed to use this restroom facility regardless of the employee’s assigned sex at birth.

Furthermore, in order to respect the privacy concerns of all employees, companies are now required to provide such measures as locking toilet stalls, staggered schedules for showering, shower curtains and other feasible privacy measures. Additionally, a company cannot require an employee to use a specific facility.

Preferred Gender, Names and Pronouns

An employee may wish to be called by a preferred gender name or pronoun (Mr., Mrs., Ms., or gender-neutral pronouns). An employer may be required to abide by the employee preference, except in cases where the company is legally obligated to use the employees gender or legal name.

Dress

Under the new regulations, it is unlawful for an employer to require a worker to dress or groom in any way that is inconsistent with that person’s gender identity. The only exception to this rule is if the employer can show that the required dress is imposed out of business necessity.

Application Forms

Employers cannot discriminate against an applicant who refuses to identify as male or female on an application form.

If you Have Questions, Contact an Attorney

It should be mentioned that the laws protecting workers’ rights don’t completely prohibit workplace discrimination. In cases where the employer can show that a bona fide occupational qualification (BOFQ) exists, certain discrimination is permitted.

The challenge, whether you’re a transgender employee, or an employment attorney, is understanding how the law applies to your particular situation. That’s why it’s important to keep in mind that no article can totally explain the nuances of employment law.

If you feel you have experienced unlawful discrimination, there’s no reason why you shouldn’t contact an employment attorney to discuss your case. Often times there is no charge for an initial consultation. In many instances, cases are taken on a contingency basis, which means the employee doesn’t pay out-of-pocket fees. Rather, the attorney is paid with proceeds from the settlement or judgment. If you have questions about a particular workplace situation, contact our office to see how we can help.

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