California Fair Housing Law Expanded To Cover Gender Identity and Gender Expression

According to the Assembly Bill Analysis, the legislation,

(1) Expressly adds the terms "gender identity" and "gender expression" to various provisions [in existing law] that define sex as including gender.

(2) Defines "gender expression" as meaning a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.

(3) Expressly adds the terms gender, gender identity, and gender expression as among the enumerated characteristics under various provisions of the law that require equal rights and opportunities and prohibit discrimination based on specific enumerated characteristics.

(4) Requires an employer to allow an employee to appear or dress consistently with the employee's gender expression, in addition to with the employee's gender identity.

The bill's author said that the legislation was needed in order to clarify prohibitions that could be found in existing law, but that could not be clearly or easily identified. She wrote, "Gender identity refers to a person's deeply felt internal sense of being male or female. Gender expression refers to one's behavior, mannerisms, appearance and other characteristics that are perceived to be masculine or feminine.

[This bill] will take existing protections based on gender identity and expression and specifically list them as protected categories in our non-discrimination laws. By making these protections explicit, people will more clearly understand California's non-discrimination laws."

A representative of the Transgender Law Center, a co-sponsor of the bill, stated the need for the bill in this manner: "If an HR manager looks up the Fair Employment and Housing Act in an effort to list the protected categories in their business' employee handbook, they will only see 'gender.' They will not clearly see gender identity and gender expression because they are contained in the definition of gender in a separate section of the law. Should this bill pass, that same HR professional will clearly see gender identity and expression and be far more likely to list those categories in the employee handbook." And so, of course, would the trainer who is responsible for teaching fair housing law and practices at a real estate brokerage.

California real estate firms will most likely be affected by this law in the area of property management. Rental agents and property managers find themselves engaged in an apparently never-ending process of education with landlords who think that they are free to discriminate according to their various personal whims when it comes to tenant applicants. Of course this happens from time to time with sellers too. Now, some new, clearly-identified protected classes will be added to the lists about which those property owners need to be informed.

Insofar as brokers are also, for many purposes, considered to be employers, the new law will affect them in that regard also. One thing to note, though, is that even though employers are required "to allow an employee to appear or dress consistently with the employee's gender expression, in addition to with the employee's gender identity," some lawyers have suggested that reasonable dress codes, appropriate to the gender, may still be maintained. Employing brokers should check with their own company legal counsel.



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