Effective July 1, 2017, there are new regulations adopted by California’s Fair Employment and Housing Authority which significantly expand protections against discrimination for the transgendered.
The regulations expand the meaning of “gender identity” to include an individual’s “internal understanding” of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender. Similarly, the definition of “sex” is expanded to include “perception by third-party of any of the aforementioned” and the term “sex stereotype” is expanded to include “gender roles, gender expression or gender identity.” Additionally, a new definition of “transitioning” is included to mean the “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, teambuilding projects or volunteering), while undergoing hormone therapy, surgeries or other medical procedures.”
The regulations enumerate a number of defenses based on a bona fide occupational qualification (“BFOG”) but go on to specify various situations which will not justify the application of the BFOQ defense including, by way of example, “the fact that an individual is transgender or gender nonconforming, or that the individual sex assigned at birth is different from the sex required for the job.”
The regulations add a number of provisions regarding working conditions. By way of example, the regulations require “equal access to comparable, safe, and adequate facilities” without regard to sex of the employee. Employers are required to permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employees assigned sex.
Employers with single occupancy facilities shall use gender neutral signage for those facilities such as “restroom,” “unisex,” “gender-neutral,” or “all gender restroom.”
Physical Appearance, Grooming, and Dress Standards
The regulations prohibit an employer from imposing on an applicant or an employee “any physical appearance, grooming or dress standard which is inconsistent with an individual’s gender identity or gender expression, unless they can establish business necessity.” The regulations require that if an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender neutral pronouns, an employer who fails to abide by the employee’s stated preference may be liable under the Act.
It is unlawful for employers to inquire about or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment.
The bottom line is that the definition of “sex” which includes gender expression and gender identity, has been greatly expanded and an employer has to be sensitive to this broad definition in the manner in which, among other things, it makes business-related decisions, applies dress codes, provides bathrooms and refers to individuals.