Starting from July 1, 2017, new regulations have come into effect in California regarding protection for transgender persons in the workplace. It is not new for California to have laws prohibiting discrimination against transgender employees. However, the new regulations under the California Fair Employment and Housing Act (FEHA) have broadened the scope of protection.
To begin with, there were significant changes to the definitions. For example, "gender identity" now means "each person'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." A new word, "transitioning," was also added, which is defined as "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." These updated definitions formed the basis of improved protections for transgender employees. The protections are now geared more towards respecting employees' choices and preferences.
First, employers are now required to provide "facilities that correspond to the employee's gender identity or gender expression, regardless of the employee's assigned sex at birth." These facilities include, but are not limited to, restrooms, showers, and locker rooms. Employers are also required to use gender-neutral signage for these facilities. This is compliant with the new California law that was effective March 1, 2017, which required all single-user restrooms to have gender-neutral signage and to be accessible to all types of gender, regardless of whether the restrooms are in a business establishment, place of public accommodation, or government agency.
Second, employers cannot force an employee to adhere to "any physical appearance, grooming or dress standard which is inconsistent with an individual's gender identity or gender expression, unless the employer can establish business necessity." Also an employer should respect the choice of name or pronoun that an employee prefers to be called by, and identify the person with that name or pronoun.
Lastly, in general, employers may not ask questions that "identify an individual on the basis of sex, including gender, gender identity, or gender expression," or ask these questions as a condition of employment. However, there are few exceptions where employers are allowed to talk with employees over these issues. For instance, an employee can voluntarily bring up the issue or the employer might ask for information in order to provide adequate facilities.
Therefore, it is recommended for employers to read through the new definitions and regulations thoroughly, which can be found at 2 CCR §§ 11030-1, 11034. Employers should understand that employees' choices are determinative and strive to provide safe and comfortable workplaces for their employees.