California Proposes Regulations on Transgender Protections, Including Restroom Issues

Jan 13 2017 - Discrimination - Gail Cecchettini Whaley

transgender restroom protections FEHA

New proposed amendments include restroom-related protections for transgender persons.

Last year, California’s Fair Employment and Housing Council (FEHC) proposed amendments to the state Fair Employment and Housing Act (FEHA) to specifically address protections for transgender persons, including restroom-related protections.

This week, the FEHC announced further modifications to the proposed regulations and seeks additional public comment.

The FEHA prohibits harassment and discrimination based on protected classes. California state law specifically protects people who identify as transgender, providing protections on the basis of both gender identity and gender expression — regardless of the person’s assigned sex at birth. California law also specifically protects an employee’s right to appear or dress consistently with his/her gender identity or gender expression.

The draft regulations emphasize that an employee has the right under the FEHA to use a restroom or locker room that corresponds to the employee’s gender identity or expression— regardless of the employee’s assigned sex at birth. The proposed regulations cover equal access to restrooms and other similar facilities, including locker rooms, dressing rooms and dormitories.

The draft regulations also include the following proposals:

  • New rules relating to seeking gender- or sex-related information from applicants and employees, including rules prohibiting employers from seeking proof of an individual’s sex, gender, gender identity or expression (except in very limited circumstances).
  • Rules specifying that employers must honor an employee’s request to be identified by a preferred gender, name or pronoun.
  • Expansion of existing gender expression, gender identity and transgender definitions to include “transitioning” employees and specifically prohibiting discrimination against transitioning employees.
  • Revision of FEHA regulations to use gender-neutral language throughout to further the FEHA’s objective to prevent discrimination/harassment regardless of a person’s sex.

Last year, the Department of Fair Employment and Housing issued new guidance for employers on how to comply with the law, but there were not any detailed regulations and the guidance is not binding legal authority.

Also, remember that a new law effective March 1, 2017, requires all single-user toilet facilities in any business establishment, place of public accommodation or government agency to be identified as “all-gender” toilet facilities. Visit the Council’s website for more information, including the text of the proposed regulations regarding transgender identity and expression.

Comment Period

Written comments on the transgender regulations can be submitted until 5 p.m. on January 27, 2017.

Comments may be submitted by e-mail to FEHcouncil@dfeh.ca.gov and brian.sperber@dfeh.ca.gov.

Written comments can also be mailed to:

Fair Employment and Housing Council

c/o Brian Sperber, Legislative & Regulatory Counsel

Department of Fair Employment and Housing

2218 Kausen Drive, Suite 100

Elk Grove, CA 95758

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more on current laws relating to Gender Identity and Expression. CalChamber’s white paper, An Overview of New 2017 Laws Affecting California Employers, is available for download. CalChamber members can access a full discussion of the new laws on HRCalifornia. Not a member? Learn more about what HRCalifornia can do for you.

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