Best in Law: What to do to Comply with Transgender Laws - Best Best & Krieger
Authored Articles & Publications Jul 10, 2017

Best in Law: What to do to Comply with Transgender Laws

New California Laws Took Effect July 1, Partner Joe Ortiz Writes in Press-Enterprise

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By Joseph Ortiz

California is continuing to be a leader on emerging civil rights issues. Back in 2004, California enacted laws to protect transgender workers. Transgender issues have become a front-burner topic.
 
On the national scene, retail giant Target created a news flurry in 2016 by installing single-stall bathrooms in its national chain to accommodate transgender customers. California reacted to the national climate by enacting Assembly Bill 1732, which, as of this past March, requires all California businesses to designate single-user toilet facilities with all-gender restroom signs. Now, the California Fair Employment and Housing Council is following this trend of being ahead of the curve by providing a whole host of new protections for transgender employees. These new laws went into effect July 1.
 
The new regulations
Previously, California law protected an applicant’s or an employee’s right to appear or dress consistent with the employee’s gender identity and expression, regardless of birth gender. The new regulations clean up language to eliminate the binary reference to male or female and include protections for transgender, gender fluid and transitioning employees. “Transitioning” is expressly defined in the new regulations as a process some transgender people go through to begin living more fully and consistently with their gender identity. The process may include changes to name, pronoun usage, facility usage, hormone therapy and surgeries, among other things. Here are some of the important takeaways from the regulations:
 
Protections for those transitioning: Employment-related protections specifically prohibit discrimination against employees who are transgender, gender fluid or “transitioning.”
 
Gender-related job duties: Employers must permit employees to perform jobs or duties that correspond to the employee’s gender identity, regardless of the employee’s birth gender.
 
Use of facilities: Employers must permit employees to use facilities that correspond to the employee’s gender identity and must designate single-user toilet facilities as available for all genders.
 
No test or ID to establish gender: Employers may not subject employees to exam or require them to provide identity documentation in order to use facilities related to their gender identity.
 
Dress standards: Employers may not impose any standards on appearance, grooming or dress that is inconsistent with an employee’s gender identity.
 
Demanding disclosure of gender: Employers may not demand disclosure or require proof of an applicant’s gender during the application for employment process. Gender information may only be requested on a voluntary basis.
 
Preferred gender, name & pronoun: Employers must comply with an employee’s request to be identified with a preferred gender, name and pronoun.
 
What businesses need to know right now
Businesses should already have updated the single-user toilet facilities to all-gender signage consistent with AB 1734 and the new regulations. If your business has not yet updated its signage, it is out of compliance.
 
Employers should also review their application forms and update them accordingly, as well as train hiring personnel, to ensure compliance with the new regulations. The only exceptions to the prohibition against demanding disclosure or requiring proof of gender are where gender is disclosed on a voluntary basis for recordkeeping, or where the employer can show a legitimate business purpose for the need for disclosure.

Finally, employers must refer to employees by their chosen name, gender and pronoun, regardless of any other gender noted on identification provided by the employee. Note that some gender fluid individuals prefer the use of plural pronouns, such as “they,” to avoid the assigning of gender in usage.
 
Originally published in the July 9, 2017 edition of the Press-Enterprise. Republished with permission.<

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