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What The Gender Nondiscrimination Act (AB 887) Does For California’s Trans People

On Sunday, October 9, 2011, Governor Edmund G. “Jerry” Brown signed the the Gender Nondiscrimination Act (AB 887) — the law becomes effective on January 1st of next year. The Gender Nondiscrimination Act directly adds “gender identity” to the list of protected classes. California already had legal protections based on gender identity and gender expression, but how the current California Codes were as written added gender identity and gender expression were a bit difficult to follow.

So there is some explanation of why the technical change to the California Codes needed to be accomplished to clarify that gender identity and gender expression were protected classes in California.

In 2003, Gov. Davis signed (AB 196) into law. From the Equality California fact sheet for AB 196:

AB 196 clarifies for the purposes of California’s Fair Employment and Housing Act (FEHA) that discrimination in housing and employment based on ‘sex’ includes discrimination based on gender. AB 196 adopts the definition of gender in California’s Penal and Education Code, which includes a person’s ‘identity, appearance, or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with the person’s sex at birth.’

The actual text of the chaptered bill is here.

In a nutshell, Section 12926 of the California Government Code was amended to read in paragraph (j):

‘On the bases enumerated in this part’ means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.

The definition of sex in the California Penal Code Section 422.56 includes paragraph (c), which reads:

‘Gender’ means sex, and includes a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Sex was already defined to include gender, and gender included gender identity via the referenced Penal Code. However, it wasn’t easy to easily figure this out without reading multiple paragraphs in multiple sections of multiple California Codes.

This is why the Gender Nondiscrimination (AB 887) came into being — it directly adds gender identity to the list of protected classes. To quote Masen Davis, the executive director of the Transgender Law Center:

In the case of California, the state has many laws protecting transgender people against discrimination in employment, housing, schools, etc. These protections were passed through the legislature in prior years by amending the legal definition of “gender” to mean “sex, including a person’s gender identity and gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth”. As a result, transgender people have been legally protected from discrimination for some time; however there was a problem – the definition of gender failed to appear in employment trainings, student handbooks, worker rights posters, and other places where we learn about our rights. We talked to hundreds of students, employers, and workers who remained unaware of their rights and responsibilities, and determined that our rights needed to be more visible.

…[T]he Gender Non-Discrimination Act makes “gender identity and expression” its own enumerated category throughout CA non-discrimination law. This means that employment rights posters, student rights publications, and employer trainings will have to list GI/GE as a separate protected category. We hope this will make it easier for trans people to know — and exercise — their rights.

Assemblywoman Toni Atkins, the primary sponsor of AB 887, has a long history with gender identity legislation. When she was with the San Diego City Council, she was the councilwoman who in 2003 introduced the change to the Human Dignity Ordinance (HDO) that added “gender identity” to the city’s list of protected classes. That change to the HDO passed with a 7-to-0 vote.

* Breaking From TLC: California’s Governor Brown Signs Two Historic Transgender Rights Bills Into Law

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