California’s Department of Fair Employment and Housing (“DFEH”) has approved new regulations that expand the protections available for people who identify as transgender. The regulations also expand protections for gender identity and gender expression.
Expanded Definitions for Gender
Under the new regulations, gender expression is defined as someone’s gender-related behavior or appearance, or perceived behavior or appearance, regardless of conformity to stereotypical behavior and appearance for the individual’s sex assigned at birth.
Gender identity is a person’s understanding of their gender, or perception of their gender identity (which may include male, female, a combination of both, or neither of those), a gender differing from the one assigned at birth, or transgender.
Transitioning Defined
The DFEH’s regulation adds a definition for “transitioning,” to ensure that no employee or potential employee is discriminated against while transitioning. Transitioning is defined under the regulations as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.” Some activities that may occur during the transition period include alterations in name or pronoun usage, facilities use, engagement in office-related activities, or beginning hormone therapy, surgery, and other related medical procedures. Employers may not discriminate against a person who has transitioned, is in the process of transitioning, or is believed to be transitioning.
Requests for Documentation or Proof
Employers may not request an employee to disclose information related to sex, including gender, gender expression, or gender identity, unless it is requested on a voluntary basis for recordkeeping purposes. Further, employers cannot inquire about or request documentation or proof of someone’s gender, gender expression, gender identity, or sex.
Other Rights
Other notable expanded rights in the new regulations include those related to work conditions and job performance. Employers must allow employees to use facilities that correspond with their gender identity or gender expression, not the sex assigned to them at birth. Further, single-occupancy facilities under the employer’s control must be labeled with gender neutral terms such as “Unisex, Gender Neutral or All Gender Restroom.”
For job performance, employers must allow employees to carry out duties that correspond with the person’s gender expression or gender identity, not the sex assigned to the person at birth.
Coverage: Employers that regularly employ five or more employees.
Effective: July 1, 2017
Action Required: You should review and modify your policies as appropriate to ensure full compliance with the new regulations. You should also contact your Human Resource Business Partner if you have any questions about the new regulations.
Produced in cooperation with Jackson Lewis P.C.