AB 887 Transgender Protection 20:20, August 1, 2016

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AB 887 Transgender Protection

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A new California law for 2012, AB 887, expands the definition of “sex” in the legal codes for various purposes, including the employment discrimination law.

Previously, “sex” referred to a person’s gender, which included their “gender identity.” AB 887 amends the definition so that it now will include a person’s “gender expression.” For example, although employers ordinarily may control how employees appear at work, they will have to let employees dress consistently with their “gender identity” and “gender expression” [Gov Code §12949].

Although the new law says it is “declaratory of existing law,” the addition of “gender expression” to Gov Code §12949 does expand employees’ rights. Specifically, besides having the right to dress in conformity with how they “identify” their gender (as a man or a woman), employees will also have the right to dress as they wish to “express” their gender.

In other words, previously employees had the right to dress as a “woman” only if it was consistent with their gender identity. That is, they “identified” themselves as a woman, regardless of their biological sex. Thus, for example, transgender people who were born male who realized they were women had the right to dress as women, since that was their “gender identity.”

Under AB 887’s amended definition, the right to dress as a woman expands to anyone who wants to “express” that gender. In other words, an individual need not “identify” as a woman to dress as a woman, but merely wish to express the feminine. Thus, a transvestite man who identifies as a man will nonetheless have the right to dress in a dress to express his gender non-conforming behavior.

Curiously, employees only have the right to dress consistent with their gender (identity or expression). As a result, there may not be a right for an employee to object to gender-specific dress code or grooming requirements, unless they identify with or wanted to express the opposite gender.

Consider, for example, the Jespersen v. Harrah’s case, which involved a female bartender fired for refusing to wear makeup (which Harrah’s required of all female but not male employees). Under AB 887, employers have the right to enforce appearance rules, although Jespersen would have the right to dress in conformity with her gender expression. So, AB 887 would entitle Jespersen to refuse to wear makeup, but only if her gender identity or expression was not “female.” Unless Jespersen was a transgender person (who believed she was a man) or wanted to behave or otherwise express a “male” appearance, she might not have the right to appear other than in conformity with her employer’s “female” dress code rules.

It’s possible, of course, that AB 887 may be interpreted to permit all types of gender expression, including “non conforming” behavior that isn’t restricted to the male-or-female dichotomy. However, if a masculine male chooses to wear a pink bow in his hair, not because he believes himself to be a woman nor because he wishes to express a female appearance but simply as a personal preference, we may have a situation where even AB 887’s expanded definition may permit an employer to discriminate and say, “You’re a man and you can’t dress like that.”

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