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Bar Association of San Francisco Member Benefits: Publications

The Impact of AB 887 on California Employment Law

 

By Aman Syed, BASF Member

 

On October 9, 2011, California Governor Jerry Brown signed a number of bills enacting new employment law statutes. One such bill was Assembly Bill 887 (“AB 887”). AB 887 adds language to several anti-discrimination statutes, including the Fair Employment and Housing Act (“FEHA”), that prohibits discrimination on the basis of “gender expression.” The term “gender expression” can most easily be understood as applying to transgender individuals behaving and dressing in a manner consistent with that gender which they identify. Thus, AB 887 can be viewed as an effort to protect and reinforce the rights of transgender individuals. The bill goes into effect on January 1, 2012.

Currently, many existing laws, including FEHA, contain provisions defining sex as including gender. These existing laws also define gender as including a person’s “gender identity” and gender-related appearance and behavior, whether or not this behavior stereotypically associated with the person’s assigned sex at birth.

AB 887 makes technical changes to these provisions. The primarily way the bill does this is by refining the definition of gender to also mean a person’s “gender expression.” In such provisions, “gender expression” will be defined as meaning a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

In the context of the workplace, the upshot of these new provisions appears to be that employees must be allowed to appear or dress consistently with that employee’s “gender identification” and “gender expression” at the workplace.

While the intentions of AB 887 are good, one potential criticism of the bill is the wording of the definition of “gender expression.” The provision states that “gender expression” means a person’s gender-related appearance and behavior, “whether or not stereotypically associated with the person’s assigned sex at birth.” The language “whether or not” could potentially be interpreted as meaning that all gender-related behaviors and appearances are covered (meaning a person would be allowed to dress and act consistently with both their assigned sex and birth and their current gender identification). Critics may argue that such a definition is ambiguous, overbroad or both.

Overall, AB 887 appears to protect the rights of transgender Californians in the workplace.


 

Aman Syed recently received his J.D. from The Ohio State University Moritz College of Law. He was previously a Summer Associate at the Columbus, Ohio office of Vorys, Sater, Seymour and Pease LLP.

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