Transgender Regulations On the Move

Apr 19 2017 - Discrimination, Uncategorized, Workplace Policies - Gail Cecchettini Whaley

California’s Fair Employment and Housing Council (FEHC) proposed amendments in 2016 to state Fair Employment and Housing Act (FEHA) regulations to specifically address protections for transgender persons, including restroom-related protections.

equal access to locker rooms, restrooms

Proposed amendments discuss equal access to use of facilities, such as restrooms or locker rooms.

The amended regulations now go to the state Office of Administrative Law for approval. If approved, the likely effective date is July 1, 2017.

The proposed regulations cover equal access to restrooms and other similar facilities, including locker rooms, dressing rooms and dormitories and 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 regulations also include the following amendments:

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

More information on the proposed regulations can be found in the Rulemaking Actions section of the FEHC’s website.

The FEHA already prohibits harassment and discrimination based on protected classes, and California 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 Department of Fair Employment and Housing issued guidance in 2016 for employers on complying with the law, but the guidance is not binding legal authority and no detailed regulations were in place for employers to follow.

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.

The FEHC’s proposed regulations also address signage for restrooms.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can visit the HR Library’s Gender Identity and Expression page for more information.  Not a member? Learn more about what HRCalifornia can do for you.

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