New Transgender Regulations Coming July 1; More Restroom Rules

May 31 2017 - Discrimination - Gail Cecchettini Whaley

The new transgender regulations cover equal access to restrooms and other facilities.

The new transgender regulations cover equal access to restrooms and other facilities.

The California Office of Administrative Law approved new regulations that specifically address protections for transgender persons, including equal access to use of facilities, such as restrooms or locker rooms.

These regulations will be filed with the Secretary of State’s office and are effective on July 1, 2017.

The new regulations expand existing protections under California’s Fair Employment and Housing Act (FEHA). The FEHA specifically protects people who identify as transgender and provides 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.

In addition to reiterating existing protections on the basis of gender identity, gender expression and transgender status, 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, or 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 prohibit 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.

New Rules for Restrooms and Other Facilities

The regulations cover equal access to restrooms and other similar facilities. They 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 specifically state that employees can’t be “required to undergo, or provide proof of, any medical treatment or procedure, or provide any identity document, to use facilities designated for use by a particular gender.”

The regulations also address signage for restrooms.

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.

Find more information on the regulations in the Rulemaking Actions section of the Fair Employment and Housing Council’s website.

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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