By Angus J. Cannon

American society has traditionally recognized only two gender identifications – male and female. However, recent California law has created a third gender identification and expanded the right of individuals to be classified by the gender of their choosing. These laws impose new requirements upon employers with respect to employee gender identity. To avoid potential liability for harassment or discrimination, employers should revise their policies and procedures, and ensure that they are compliant with current law.

California now recognizes a third gender identification for state issued birth certificates and driver’s licenses. In addition to male and female, the Gender Recognition Act creates a “nonbinary” gender identification. Nonbinary is an umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male. For changes to birth certificates and other legal documents, the law is effective on September 1, 2018. For changes to driver’s licenses, the law is effective on January 1, 2019. Employers are likely to encounter practical and legal issues if employee identification documents do not conform to state issued identification documents. Notably, employers may be liable for gender-based discrimination if they do not provide legal recognition and equal treatment of an employee’s accurate gender identity.

California has also expanded its anti-harassment training and notice requirements for employers. Senate Bill 396 requires employers with 50 or more employees to include in their mandated sexual harassment prevention training for supervisors and managers additional training about harassment based on gender identity, gender expression, and sexual orientation. The training must include practical examples of such harassment and must be presented by trainers or educators with knowledge and expertise in those areas. The bill also requires all employers to post a Department of Fair Employment and Housing poster regarding transgender rights in a prominent and accessible workplace location. Employers face increased exposure to liability for gender-based discrimination if they not update their sexual harassment prevention policies.

In sum, times are changing and employers must adapt to California’s new gender related laws. Employers who fail to do so will be confronted with practical and legal consequences. As such, gender identification is an area to be aware of and to devote resources to in order to comply with existing non-discrimination laws. The attorneys at Fenton & Keller are well-equipped to provide guidance and training to employers on these issues. Please contact us to learn more about these new laws and to ensure that your business’ practices, policies, and procedures are compliant with current law.