Question: Transgender “bathroom laws” in other states have been headline news lately, but what do California employers need to know about transgender employee rights?
Answer: The California Department of Fair Employment and Housing (“DFEH”) recently issued new guidance for employers of transgender employees on complying with California’s primary anti-discrimination statute—the Fair Employment and Housing Act (“FEHA”).  The new guidance was issued following a lawsuit involving a transgender individual who had been offered a job on the condition that the person use bathroom facilities that were inconsistent with the person’s gender identity and expression.
According to the DFEH’s guidance, people who identify as transgender are protected by the FEHA, which prohibits harassment and discrimination in employment, including discrimination based on sex, gender, gender identity, gender expression, and sexual orientation.  The FEHA defines “gender expression” as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth” and gender identity as “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.”
The guidance explains that all employees have a right to safe and appropriate restroom and locker room facilities, including the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.  Also, where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy for any reason.  Importantly, no employee should be forced to use any particular bathroom as a matter of employer policy or due to continuing harassment.
As for employers’ dress codes and grooming standards, the FEHA prohibits an employer from denying an employee the right to dress in a suitable manner for that employee’s gender identity.  An employer who requires a dress code must enforce it in a non-discriminatory manner.  For example, a transgender woman must be allowed to dress in the same manner as a non-transgender woman, and her compliance with such dress code cannot be judged more harshly than non-transgender women.
The DFEH guidance further explains that a transgender person need not complete any particular step in a gender transition in order to be protected by the FEHA.  The guidance identifies two kinds of gender transition:  social transition and physical transition.  Social transition involves a process of socially aligning one’s gender with the internal sense of self (e.g., changes in name and pronoun, bathroom facility usage).  Physical transition refers to medical treatments an individual undergoes to physically align their body with their internal sense of self (e.g., hormone therapies, surgical procedures).
Finally, according to the guidance, an employer should not ask employment applicants any questions designed to detect a person’s sexual orientation or gender identity, such as asking about marital status, spouse’s name, or relation of household members to one another.  The guidance also advises employers against asking questions about a person’s body or whether they plan to have surgery, as such information is generally protected by the Health Insurance Portability and Accountability Act (“HIPAA”).
Although the DFEH’s recent guidance for California employers on transgender employees is not codified as statutory law in California, prudent employers will adopt policies and procedures that are consistent with the DFEH guidance and the FEHA to prohibit all forms of workplace harassment and discrimination.