Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression and the California Gender Act

Background on the California Gender Act and Final Transgender Rule:

The California Gender Act authorizes the State of California to legally recognize that many people do not identify with either the male or female genders and prefer to be recognized as “non-binary”, an umbrella term that encompasses many different identities, including intersex, a gender, genderqueer, gender fluid, Two Spirit, bigender, pangender, gender nonconforming, gender variant, and transgender. The Act requires the state to change its registration and judicial procedures to allow individuals to identify as nonbinary.

Some of the important changes include:

Effective September 1, 2018:

• Eliminating the requirement that individuals seeking name or gender changes from state courts provide proof of gender transition treatment
• Allowing judges and the State Registrar to issue new birth certificates reflecting name or gender changes if the individual was born in California

Effective January 1, 2019:

• Allowing individuals to select nonbinary as their gender on drivers’ licenses and other forms of state identification without formal documentation
• Directing the Department of Motor Vehicles to provide a process for amending gender selection on drivers’ licenses and other forms of state identification and post the process on its website

California is the first U.S. state to recognize a third gender via legislation, but the State of Oregon and the District of Columbia’s transportation authorities also allow individuals to opt-out of gender selection on drivers’ licenses and other forms of state identification by selecting an “X” option. The State of New York also has pending legislation to recognize a non-binary option. This is a trend we see continuing at the state level in 2018 and beyond, and we are likely to see multiple classification options emerge.

Employer Impacts:

Employers must identify an employee by a preferred gender, name, and/or pronoun, including gender-neutral pronouns, if asked to do so by the employee unless the employer is legally obligated to use an employee’s gender or legal name as indicated in a government-issued document. Unless there is a qualified business reason, employers may not ask about an applicant’s sex, including gender, gender identity, or gender expression; and/or pronouns.

For more information please reference:

Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression

SB-179, Gender Identity: Female, Male or Nonbinary