California Labor and Employment Defense Blog

Another Bad Law from Sacramento - AB 887 and "Gender Expression" Discrimination

Each year California enacts some very bad employment-related laws.  By “bad” I don’t mean that they are necessarily bad policy.  What I mean is that they are so poorly drafted that the policy itself is unintelligible.

One of this year’s “bad” laws is AB 887, which prohibits discrimination based on “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

What can it possibly mean for one’s appearance or behavior to be “gender related?”  Webster’s defines “gender” as “the behavioral, cultural, or psychological traits typically associated with one sex.”  So the dictionary definition suggests that acting in a manner typically associated with one’s sex is now protected.  Thus, acting like an aggressive macho jerk would be protected if you are a man, or dressing in frilly pink ribbons and batting your eyelashes would be protected if you are a woman.

But then the statute doubles back on itself by providing that “gender-related” also means anything that is “not stereotypically associated” with the person’s sex. Thus “gender-related” is defined as anything associated with a person’s biological sex or anything that is not associated with the person’s biological sex. The statute thus prohibits discrimination based on everything that is either “x,” or “not x.”  It is literally meaningless as drafted.

I know nothing about the Legislative history of this bill.  Perhaps it was intended to prevent discrimination against transsexuals or transvestites.  But if that was the purpose why didn't the Legislature just say so.   

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