Mcle Self-study: Clearing Up the Law on Transgender Rights

• Citation: Vol. 30 No. 4
• Publication year: 2016
• Author: By Nelson Chan, Jeanette Hawn, and Roya Ladan

MCLE Self-Study: Clearing Up the Law on Transgender Rights

By Nelson Chan, Jeanette Hawn, and Roya Ladan

Nelson Chan is Chief of Public Policy and Education for the DFEH. He maintains an active civil trial practice while serving on the DFEH Executive Team. Mr. Chan graduated from U.C. Davis and U.C. Hastings.

Jeanette Hawn is a Civil Rights Fellow for the DFEH. Ms. Hawn earned her J.D. from U.C. Davis School of Law in 2015, where she was a Public Interest Law Program Scholar and student in the Civil Rights Clinic.

Roya Ladan is a law clerk in the Federal District Court for the Central District of California. Prior to clerking, she served as an attorney for the DFEH, litigating civil rights cases. She earned her J.D. from U.C. Davis School of Law and a B.A. from C.S.U. Long Beach.

A transgender male applies for a job, passes multiple interviews, and is subsequently offered and accepts the position. While in the process of submitting his background check forms, he informs human resources that he recently transitioned from female to male and is in the process of legally changing his name. When the employer learns from the background check forms that the employee previously used female names, it asks him for documentation regarding his gender and the status of his medical transition. The employer also expresses concern regarding the employee's use of the male locker room, restroom, and shower unless he completes sex reassignment surgery. The employee informs the employer that he uses the men's restroom in public areas, uses the men's locker room at the gym, and has never been questioned about his gender. Despite the fact that the employee identifies as male, expresses himself as male, and uses male facilities in other settings, the employer requires him to use the female facilities as a condition of his employment.

Situations like the one described above are far too common in today's workplace. California's Fair Employment and Housing Act (FEHA) protects those who identify as transgender from discrimination, harassment, and retaliation. "'Transgender' is a general term that refers to a person whose gender identity differs from the person's sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as 'transsexual.'"¹ A transgender person may transition socially, including legally, and/or medically to live as the gender with which they more closely identify.² This can include coming out to family, friends, and co-workers; a new name and/or pronouns; a more feminized or masculinized outward appearance; legally changing one's name and/or sex on identity documents; and undergoing feminizing or masculinizing medical treatments such as hormone therapy, electrolysis, laser hair removal, and surgeries.³ Contrary to popular misconceptions, there is no one "transgender surgery" or path to transition that a transgender person must follow. The FEHA does not distinguish between people who have accessed medical care in furtherance of their transition and those who have not.

I. ACCESS TO FACILITIES CONSISTENT WITH ONE'S GENDER IDENTITY AND EXPRESSION IS A PROTECTED RIGHT UNDER THE FEHA

California's Fair Employment and Housing Council (Council) promulgated new employment regulations, which recently took effect on April 1, 2016, clarifying the application of the FEHA to transgender employees. Read in light of California's other nondiscrimination statutes, findings by the Equal Employment Opportunity Commission (EEOC), and guidance issued by various federal agencies, current California anti-discrimination laws and regulations establish that a transgender employee's access to facilities consistent with his or her gender identity and expression is a protected right.

In 2003, the California Legislature expanded the definition of sex discrimination in the FEHA, Unruh Civil Rights Act,⁴ and Ralph Civil Rights Act,⁵ to include discrimination on the basis of the person's gender identity or gender-related appearance and behavior.⁶ By enacting the Gender Nondiscrimination Act (AB 887) in 2011, the Legislature further amended the FEHA and Unruh Civil Rights Act to specifically enumerate "gender identity" and "gender expression" as protected characteristics, with the intent to "reduce confusion among those who bear the responsibility of ensuring that current anti-discrimination laws are enforced."⁷ In addition, as a result of the Gender Nondiscrimination Act, employers are required to "allow an employee to appear or dress consistently with the employee's gender identity or gender expression."⁸

The new employment regulations include definitions and amendments that, when read in conjunction with California's existing anti-discrimination law, demonstrate the broad scope of protection afforded to transgender employees. The Council's stated purpose for the regulations "is to define sex and gender constructs within the meaning of the FEHA," which the Council found "necessary to implement, interpret, and make specific" the aforementioned additions to the FEHA's protected characteristics. First, the regulations define "sex" as including "gender identity and expression," which are further defined as "a person's identification as male, female, a gender different from the person's sex at birth, or transgender;" and "a person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth," respectively.⁹ Consistent with Assembly Bills 196 and 887, "transgender" is defined as "a general term that refers to a person whose gender identity differs from the person's sex at birth."¹⁰ Finally, the regulations explicitly provide that transgender individuals enjoy protections under the FEHA's provisions regarding pregnancy, childbirth, or related medical conditions.¹¹

It is an unlawful employment practice for an employer to discriminate against a person in "terms, conditions, or privileges of employment" because of that person's gender, gender identity, or gender expression.¹² Based on the amendments to the FEHA and new regulations, it is clear that the FEHA prohibits employers from providing transgender employees with unequal terms and conditions of employment. Employers are required to provide employees access to toilet facilities, as well as washing facilities and changing rooms if the employee is required to change clothes as part of their job.¹³ In addition, employers are required to provide employees of both sexes "[e]qual access to comparable and adequate toilet facilities."¹⁴ Therefore, equal access to restrooms, locker rooms, and/or shower facilities is a basic condition of employment. By restricting employee access to the sex-segregated facility aligned with the employee's assigned sex at birth, rather than allowing employees access to the facility that aligns with the gender they identify with and/or their gender expression, the employer not only effectively refuses to recognize the employee's personal sense of self but also places the employee at significant and unnecessary risk of attack and abuse.¹⁵ This constitutes an adverse action because such conduct provides the employee with unequal terms and conditions of...