Question: I read that the federal government is trying to limit or eliminate gender discrimination protections, specifically for transgender individuals. Should I be concerned?
Answer: Recent news reports state that the federal government is seeking to narrowly define gender as a biological, immutable condition determined by genitalia at birth. The Department of Health and Human Services (“HHS”) is preparing to formally present to the Justice Department, before the end of 2018, a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance. The HHS’s proposal defines sex as male or female, unchangeable, and determined by the genitals with which a person is born. An HHS memo notes that key government agencies need to adopt this policy, implying that this type of definition should also apply to Title VII, the federal civil rights law that prohibits employment discrimination based on five protected categories including sex.
In addition, last month, after the federal Equal Employment Opportunity Commission successfully sued a Michigan funeral home on behalf of a transgender employee for employment discrimination, the U.S. Department of Justice argued before the U. S. Supreme Court that Title VII does not protect employees from discrimination in employment based on their gender identity.
Regardless of federal law, California law protects employees from employment discrimination based on gender identity and expression. Discrimination and harassment based on sex and gender is prohibited under California’s Fair Employment and Housing Act (“FEHA”). Since 2011, the FEHA has specifically prohibited discrimination in employment based on gender identity and gender expression.
In July 2017, the California Fair Employment and Housing Council published regulations providing an expanded definition of gender identity as a person’s “internal understanding of their gender,” including “male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth and transgender,” whether or not expressed in the employee’s external presentation. These regulations also protect individuals in transition, perceived to be transitioning, or who have already transitioned, with “transitioning” defined as a process in which an individual begins living as the gender with which he or she identifies. The FEHA regulations prohibit employers from requiring gender documentation or imposing job duties, dress standards, or restroom usage inconsistent with an employee’s gender identity or expression, except in very limited circumstances.
Furthermore, earlier this year California expanded its harassment prevention training and notice requirements for employers. Senate Bill 396 requires all employers to conspicuously post a state-approved “Transgender Rights in the Workplace” poster, which can be found at https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/11/DFEH_E04P-ENG-2017Nov.pdf. This bill also requires employers to include in their harassment prevention training education on gender identity, gender expression, and sexual orientation.
In sum, federal efforts to deny civil rights based on gender should not significantly impact California workplaces due to our state’s broad and robust gender discrimination protections. Accordingly, California employers should continue their efforts to provide workplaces free of harassment and discrimination based on all protected classes including gender, gender identity, and gender expression, and comply with California’s expanded training requirements.