“Non-binary” will Join “He” and “She” in California

California law prohibits discrimination against employees for their membership in any protected class. This includes gender identity, defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”

In October, 2017, Governor Jerry Brown enacted the “Gender Recognitions Act” (the Act) which affirms a “non-binary category” as a third gender. California is one of the first jurisdictions in the country to enact this recognition, alongside Oregon and Washington, D.C.

The Act includes these definitions of intersex, nonbinary and transgender individuals:

• Intersex: “an umbrella term used to describe natural bodily variations, which can include external genitalia, internal sex organs, chromosomes, or hormonal differences that transcend typical ideas of male and female.”

• Nonbinary: “an umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male. People with nonbinary gender identities may or may not identify as transgender, may or may not have been born with intersex traits, may or may not use gender-neutral pronouns, and may or may not use more specific terms to describe their genders, such as agender, genderqueer, gender fluid, Two Spirit, bigender, pangender, gender nonconforming, or gender variant.”

• Transgender: “an umbrella term used to describe people whose gender identity or gender expression do not match the gender they were assigned at birth… Transgender people may identify as female, male, or nonbinary, may or may not have been born with intersex traits, may or may not use gender-neutral pronouns, and may or may not use more specific terms to describe their genders, such as agender, genderqueer, gender fluid, Two Spirit, bigender, pangender, gender nonconforming, or gender variant.”

Starting September 1, 2018, the Act will provide a separate court procedure for minors to petition for change of gender to female, male or nonbinary and will also simplify the existing legal procedure to recognize a change of gender for any person who has undergone gender-related treatments. Instead of requiring a court judgment, the Act will simply allow the individual to supply a sworn affidavit or declaration to a judge affirming that a request to change gender does not have any fraudulent purpose.

On January 1, 2019 the Act will allow an applicant for a driver’s license or renewal to choose among female, male, or nonbinary gender categories.

In light of this changing landscape, California employers should consider these as best practices:

• Educate supervisors on nonbinary individuals’ legally-recognized rights
• Update all employee handbooks and policies to reflect these changes in the law
• Review signage on all company bathroom facilities to ensure legal compliance
• Ask any nonbinary employees or applicants for their preferred names and pronouns
• Provide any reasonable accommodation, such as for gender-related court proceedings
• Properly address any questions or concerns from nonbinary employees

See also:

• New Transgender Rights in the Workplace (July 2017)
• Single Occupant Toilet Facilities Must be All- Gender As of March 1, 2017 (December, 2016)
• California Employer’s Guide To New Laws 2012: Gender Identity and Expression Protection (December, 2011)
• Gender Equality and Discrimination in the Workplace (November, 2011)
• Workplace Discrimination

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

April 19, 2018