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CALIFORNIA’S NEW REGULATIONS ON TRANSGENDER EMPLOYEE PROTECTIONS

8/9/17

By: Melissa M. Whitehead

Effective July 1, 2017, new regulations went into place to protect transgender employees (Cal. Code Regs. §§ 11030-11034). The new regulations are intended to provide “enhanced clarity” and also lists specific types of prohibited conduct and/or protections.

New defined terms are key to the new regulations. “Gender Identity” is now defined as “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.” (New portions underlined.) “Transitioning” is defined for the first time, 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 is not expressly defined, but can include anything from name or pronoun usage to undergoing hormone therapy, surgeries, or other medical procedures. Discrimination against a person who is transitioning, has transitioned, or is perceived to be transitioning, is now specifically prohibited.

Under the new regulations, employers –

• Must use requested name/pronouns, except where legally obligated (e.g., tax documents);
• May not ask for identification/documentation of sex, gender, gender identity, or gender expression, and cannot discriminate if a job applicant declines to designate;
• Must permit employees to perform job/duties that correspond to the employee’s gender identity or gender expression; and
• May not ask employees to comply with dress/grooming standards inconsistent with gender identity or expression.

Employers also must provide equal access to comparable, safe, and adequate “facilities” that correspond to the employee’s gender identity or gender expression. Here, a “facility” is more than just a bathroom, and can include locker rooms, showers, etc. An employer cannot require “proof” or documentation of any medical treatment or procedure, or any identity document, for use of a particular facility. Interestingly, the new regulations also require employers to provide “feasible alternatives” to protect the privacy interests of all employees. These can include, for example, locking toilet stalls, staggered shower schedules, shower curtains, or other methods of ensuring privacy.

One final note to employers – typically in discrimination cases, an employer has an available defense where a certain religion, age, gender, etc., is a “bona fide occupational qualification.” Examples of this defense include requiring a Church’s minister to be a particular religion or a women’s’ restroom attendant to be female. However, the new regulations specifically state that this defense will not apply to discrimination based on an individual being transgender, gender nonconforming, or where an individual’s sex assigned at birth is different from the sex required for the job.

California employers faced with implementation of these new regulations are entering uncharted territory and though the obligations and expectations of employers is now somewhat clearer, much is still left murky.  Employers with questions or issues raised by these new regulations are strongly encouraged to seek advice of experienced employment counsel.

If you have questions or would like more information, please contact Melissa Whitehead at mwhitehead@fmglaw.com.