New Definition of Gender for Employers

California’s lawmakers passed new employment legislation. Here is one of  the bills, which is now requiring, among other things, that we allow genetic males to come to work in drag, if their identity or gender expression requires it:

AB 887: An Expanded Definition of Gender and How it Impacts Dress Code Policies

Effective immediately, AB 887 makes changes to the California Civil Code (the Unruh Civil Rights Act), Government Code (including the Fair Employment and Housing Act or “FEHA”), Education Code and Insurance Code relating to the definition of the term “gender”.  Currently, each of these statutes provides that “gender” is a protected classification and prohibits discrimination on the basis of gender. For example, the FEHA prohibits discrimination in employment practices based on an individual’s “gender.”

The definition of “gender” has been expanded to mean a person’s gender identity and gender expression. Gender expression is further defined to mean a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

Government Code section 12949 (of the FEHA) was specifically amended to state that although an employer may require an employee to adhere to reasonable workplace appearance, grooming and dress standards, such adherence should not require an employee to appear or dress inconsistently with his or her gender identity or gender expression.

What this means: Employers should update their sexual harassment and discrimination policies to include the newly refined definition of gender as a protected characteristic under the law. Employers with appearance-related policies are also encouraged to include language consistent with the changes to Government Code section 12949 and to ensure that the dress codes are gender neutral.

3 thoughts on “New Definition of Gender for Employers

  1. Mary Barnes

    OMG, this is EXACTLY the kind of scenario I was predicting back in the 70s when I was travelling the country speaking against the Equal Rights Amendment. Of course, I was laughed at and called a scaremonger — obviously, nothing that absurd could possibly result from such reasonable legislation. The language of the amendment, by the way, was “on account of sex,” not “gender,” so I pointed out how broadly “sex” could be defined. Probably the California legislators who drafted the original act thought they were avoiding those pitfalls by using “gender” instead of “sex.” But apparently nothing can deter a government that is determined to be ridiculous.

Leave a Reply