California Becomes Fourth State to Ban Gender Identity Discrimination

California became the fourth U.S. state to ban discrimination on the basis of gender identity this past weekend when Governor Gray Davis signed AB 196, which expands the state’s prohibition on sexual discrimination and harassment by including gender in the definition of sex. While the move was not unexpected, given the strong lobbying efforts to move the bill forward in the last several years, it will nonetheless be controversial, especially given Gov. Davis’ current political predicament, as he faces a recall election in October.

Discrimination against trangendered individuals has been identified as a pervasive problem, even in areas perceived as tolerant and inclusive, such as San Francisco and Los Angeles. In a 2002 survey conducted in San Francisco, nearly 1 in every 2 survey respondents had experienced gender identity based employment discrimination, while more than 1 in every 3 respondents had suffered from gender identity discrimination in a place of public accommodation. (See Trans Realities study) Other data from the survey highlights the consequences of conscious or institutional employment discrimination. For instance, 64% of respondents make less than $25,000 a year and a full 79% of respondents make less than $50,000. Over 40% lack health insurance and almost 20% do not have stable housing. As the survey concludes, “[t]he bottom line is that employment discrimination disenfranchises transgender people from U.S. society.”

Activists in California have been trying for several years to add gender identity protections to the state Fair Employment and Housing Act (see AP article), but up until this year, had been unsuccessful at moving the measure through the state Legislature. This year, the bill passed both the Assembly and the Senate without a single Republican vote to reach the governor’s desk. (See San Francisco Chronicle article.)

While Gov. Davis had been expected to sign the bill, given the political upheaval he is now facing, some questioned whether the recall effort against him would affect his willingness to sign the bill. The bill was signed as part of a large package of bills signed in conjunction with the state budget, with the news of its signing released on a Saturday. While some critics suggested that Davis hoped to avoid negative publicity by signing the bill and releasing the news this way, the governor’s office responded by saying that Davis was extremely busy and didn’t have time to do a larger media push touting the signing. (See San Francisco Chronicle article.) Critics also suggested that Gov. Davis was trying to build a voting bloc among gay voters by signing the bill, since conservative voters most likely to oppose the bill weren’t likely to support Davis anyway in the recall election. However, as another bill of perhaps even greater significance is pending–AB 205, which would give gay partners many of the same rights as married couples, some are taking a wait-and-see approach, withholding their full support until AB 205 is either signed or vetoed by the Governor.

Regardless of Davis’ political motives for signing the bill, the fact remains that this law is now on the books and available to protect transgender citizens from employment, housing and public accommodation discrimination. Given California’s influence as a bellwether state, the new law should significantly influences other states contemplating similar legislation.

More information:

WF’s gender identity discrimination page

WF’s filing a discrimination complaint: California

National Center for Lesbian Rights: Transgender Law Project

Equality California Press Release

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.