California Enacts New Transgender Employment Laws

California’s new transgender regulations took effect July 1, 2017. The new regulations expand on Fair Employment and Housing Act laws that prohibit employers from discriminating or harassing applicants and employees who identify as transgender regardless of the person’s sex assigned at birth. An employee’s right to appear and dress consistent with their gender is now protected. In addition, new regulations, set forth in California Code of Regulations, Title 2, sections 11030, 11031, and 11034, now protect gender identity and gender expression. These regulations specifically define the following:

  1. 1. Transgender. Transgender is now defined as a person whose gender identity differs from his/her sex assigned at birth.
  2. 2. Gender expression. Gender expression refers to a person’s gender related appearance or behavior. 
  3. 3. Gender identity. Gender identity is defined as a person’s internal understanding of his/her gender. It also includes the perception of a person’s gender identity.

Key changes to the FEHA include the following:

  1. 1. Transitioning

The new regulations briefly describe the notion of transitioning. Transitioning may include hormone therapy, surgical alterations, or undergoing other medical procedures related to gender. An employer cannot discriminate against an employee who is transitioning or who has transitioned. Employers are also not allowed to directly or indirectly ask employees whether or not they are transitioning.

  1. 2. Employee Names & Gender Requests

Employers are required to honor an employee’s request to be identified by a preferred gender, name, or pronoun. Employers are allowed to use an employee’s legal name or gender as indicated on an official government issued document to fulfill a legally mandated obligation.

  1. 3. Gender Information

Employers are prohibited from requesting proof of an applicant or employee’s sex, gender, or gender identity or expression. An employer can request for the information to be provided on a voluntary basis. An employee can also initiate conversation regarding their gender orientation without recourse to the employer. An employer can require an employee to state their gender to determine whether he/she meets a “bona fide occupational qualification.”

  1. 4. Facility Accessibility

Employers must ensure all employees, including transgendered, now have equal access to comparable, safe, and adequate facilities regardless of the employee’s sex. An employee now has a right to use a facility that corresponds to his/her gender identity or gender expression. Facilities include restrooms, locker rooms, and showering areas.

  1. 5. Signage

Gender-neutral signage is required for single-occupancy facilities under an employer’s control.

California employers should review their equal employment opportunity laws to make sure they are following the new regulations of the FEHA. Under the new rules, if an employee requests to be identified with a preferred gender, and an employer fails to honor such a request, the employee can file a lawsuit against the employer under the new regulations. An employee’s gender identity should be respected. Employers should train managers and supervisors on the new regulations to ensure that they follow them.