2020 Update of a Brief Overview of the Transgender Employee in California & Their Rights in the Workplace

Editor’s Note: This article was updated in December 2020. The original was published in the February 2017 issue of Contra Costa Lawyer magazine.

The ensuing 2020 update to the previous 2017 article, provides a brief overview of the current status of the California transgender population, rather startling statistics concerning discrimination faced by the transgender community in the workplace, a brief discussion of relevant federal law as well as the status of California law for which a MCLE Self-Study Elimination of Bias one (1) unit of credit test is available hereinafter.

I. What It Means to be Trans

Transgender people are your friends, coworkers, neighbors, peers within your networking and social groups, they are also your parents, siblings and children. The transgender community is extremely diverse, consisting of persons from all communities including racial and ethnic backgrounds and religious faiths.

Transgender or Trans is an umbrella term describing people whose gender identity differs from the gender (or sex) they were assigned at birth. Transition includes a social transition and a physical transition. Social transition means to socially aligning one’s gender with the internal sense of self such as changes in name, pronoun, bathroom facility usage and the like. Hence, the person’s gender expression, gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth may alter. The physical transition includes medical treatments an individual may undergo to physically align their body to an internal sense of self including but not limited to hormone therapies or surgical procedures. When a person decides to transition (male to female/female to male), to help bring their body closer to the gender identity they feel on the inside, some undergo surgery but not all do, those who do not are just as trans as those who engage in all or some of the medical transition.

Please see Language Matters article for further guidance as to terms and vocabulary.

II. California Transgender Status

There have been various studies and assessments of the transgender population, however, many LGBTQ+ activists believe those surveys are unreliable, noting there are likely many more trans people than recorded due to fear of discrimination and transphobia. An often referred to survey from Williams Institute reported in June 2016, adult persons who identify as transgender, is slightly under 1.4 million in the United States. This number is nearly double what it was four years prior.  Adult identifying transgender persons are approximately 0.76% of the California population or 218,000 in California.  California ranks the second (2nd) largest population in the U.S. for identifying transgender adults.[1] In 2017, GLAAD reported that an estimated 3 percent of the US population identified as transgender across various age groups.[2] Currently, the Human Rights Commission (HRC), estimates there are more the 2 million transgender persons across the United States.

In December 2016 the largest survey examining the experiences of transgender people in the United States was issued to date.[3] The report provided a detailed look at the experiences of transgender people (referred to as “respondents”) across a wide range of categories including employment. The findings reveal disturbing patterns of mistreatment and discrimination.

  • The unemployment rate among respondents (15%) was three times higher than the U.S. population (5%).
  • 27% of respondents who applied for a job during that year reported being fired, denied a promotion, or not being hired for a job they applied for because of their gender identity or expression.
  • 30% of respondents who had a job in the past year reported being fired, denied a promotion, or experiencing some other form of mistreatment related to their gender identity or expression.
  • 77% of respondents who had a job in the past year took steps to avoid mistreatment in the workplace, such as hiding or delaying their gender transition or quitting their job.[4]

Moreover, there are countless reports as to the negative impacts the COVID-19 pandemic has had specifically on the transgender community who have been forced to delay or halt scheduled medical procedures and treatment, or legal name change proceedings as a result of court closures, causing significant mental and physical distress and resulting in further bias including in the workplace.  Since COVID-19:

  • 19% of transgender people and 26% of transgender people of color have become unemployed due to COVID-19.
  • 29% of transgender people and 31% of transgender people of color have had to take unpaid leave due to COVID-19.
  • 54% of transgender people and 58% of transgender people of color have had their work hours reduced due to COVID-19.
  • 22% of transgender people and 32% of transgender people of color have no health insurance.[5]

The growing bias against transgender people is highlighted by the shocking ongoing brutal murders across the country of trans women with a large number of these murders focused on black trans women. As of October 11, 2020, there were 33 murders within 2020, though those numbers are likely even higher as there are countless victims misgendered by police and not reported.  These victims, like us, were people – loving members of a family and friend groups, participants in their communities, employees and co-workers, and so much more. While details of each murder differs, the violence disproportionally impacts transgender women of color – Black transgender women – shining a light on the intersectionality of racism, sexism, homophobia, biphobia and transphobia.[6]

With these sobering statics, an overview of California employment laws is discussed.

III. Bostock v. Clayton County

The U.S. Supreme Court’s ruling in Bostock v. Clayton County, on June 15, 2020, must be noted when discussing updates as to transgender rights. The decision centered upon if federal protections against discrimination found within Title VII of the Civil Rights Act of 1964 applied to a transgender person.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, and applies to employers with 15 or more employees.  Pursuant to the Civil Rights Act of 1964, it is illegal for an employer to fire, fail to hire, or discriminate in any way against another with respect to their compensation or in the terms, conditions, or privileges of employment because they are a man or a woman.  These prohibitions on discrimination also apply to sex-based “harassment.” Harassment occurs when a supervisor or co-worker subjects another to hostile, offensive, or intimidating behavior because of their sex that is so severe or pervasive that it interferes with your ability to perform your job. Sex discrimination includes situations where someone is treated unfairly for not looking or acting in the way expected of a man or a woman. Discrimination against someone for not conforming to gender stereotypes about the way people of a particular sex are supposed to look or act is sex discrimination.

On June 15, 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, that the 1964 Civil Rights Act protected gays, lesbians, and transgender employees from discrimination based on sex. The ruling was 6-3, with Justice Neil Gorsuch, President Trump’s first appointee to the court, writing the majority opinion. The opinion was joined by Chief Justice John Roberts and by liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Today,” Gorsuch said, “we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” He found such discrimination is barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin or sex.

It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote. “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

Similarly, as reasoned by Justice Gorsuch, if an employer fires an employee because that person was identified as male at birth, but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male. However, the Bostock decision does not address related issues under Title VII such as dress codes, bathroom access, or locker room access, which were raised by Justice Alito’s dissent.

Even though the Court in Bostock did not address the full scope of potential protections under Title VII in the manner activities would have like, the ruling was considered a win for the LGBTQ+ community and their allies. In face of a win, shortly after the Court’s ruling, the administration eliminated federal protections against discrimination in health care for transgender people and barred them from military service except  under certain circumstances. Under the correct factual situation, one practicing in California would site to said decision, however, the laws as to transgender persons in California have consistently been and will continue to be more expansive.

IV. Overview of California Workplace Protections

A. California’s Fair Employment and Housing Act (“FEHA”)

As of January 1, 2004, California’s Fair Employment and Housing Act (FEHA) made it illegal for an employer with 5 or more employees to fire, fail to hire, or discriminate in any way against employees who are or are perceived to be transgender or gender non-conforming.[7]

The FEHA also prohibits “harassment” on the basis of gender identity or gender expression, regardless of the employer’s size. Harassment occurs when a supervisor, co-worker, or non-employee in a workplace subjects one to hostile, offensive, or intimidating behavior because of gender identity or gender expression.

The FEHA uses the phrases, “sex, gender, gender identify and gender expression” to define transgender. Gender expression is defined by the law to mean a “person’s gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”[8]

On February 17, 2016, the California Department of Fair Employment and Housing (“DFEH”) issued guidelines on transgender employee rights.  Pursuant to said clarifications, an employer may ask an employee/applicant as to their employment history, for references and non-discriminatory relevant questions. However, an interviewer should not ask questions designed to detect a person’s sexual orientation, gender identity, including marital status, spouses name, or relation to household member.  Further, employers should not ask questions about a person’s body or whether they plan to have surgery.

Additionally, the law prohibits an employer from denying an employee the right to dress in a manner suitable for that employee’s gender identity.  A transgender employee should be allowed to serve in a sex-segregated job based on their gender identity. An employer who requires a dress code must enforce it in a non-discriminatory manner. Though a job assignment can be based on sex so long as the assignment is otherwise in compliance with state law.

All employees have a right to safe and appropriate restroom and locker room facilities. Including the right to use a restroom or locker room which corresponds to the employee’s gender identity regardless of the employee’s assigned gender at birth. If possible, the employer should provide an accessible unisex bathroom for use by any employee regardless of reason, though use should be a matter of choice not requirement.

Violations of the FEHA create a private right of action for the individual victim for which the individual may seeks assistance through the DFEH or through an individual attorney.

B. California Political Activity Laws – “Coming Out”

California Labor Code Sections 1101 and 1102 prohibit employers from preventing an employee’s political activity, or punishing an employee due to that employee’s political activity. The California Supreme Court has interpreted “coming out” by lesbian, gay, and bisexual employees to constitute protected political activity. Likewise, if one discloses gender identity or openly transition from one gender to another, the employee may argue that these actions are protected political acts.

C. Bay Area Specific Laws

Several local Bay Area cities such as San Francisco, Oakland, City and County of Santa Cruz, have laws that prohibit gender identity discrimination in employment. For example, in San Francisco, the Human Rights Commission can investigate a complaint of discrimination and mediate a settlement between the individual and the employer. Other localities may have similar commissions, civil rights offices or equal employment officers who may assist with a complaint under the local ordinance. However, these local laws often are of limited value to employees because California law bars an individual from actually bringing a lawsuit under local law. Therefore, if mediation does not result in a satisfactory resolution, the human rights commission or similar agency can’t do anything more to enforce the law on behalf of the individual.

V. Conclusion

Those who identify as transgender and those who feel comfortable doing so despite the growing number of violate attacks, are growing in California.  As a community, transgender people face frequent employment discrimination, which leads to high rates of unemployment. California workplace laws continue to develop and grow in relation thereto.  Education of employment rights and duties is an important element in prevention and resolution.

MCLE Self Study

Earn one hour of Elimination of Bias MCLE credit by answering the questions on the Self Study MCLE test available here.
Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within 2 weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540.

[1] How Many Adults Identify as Transgender in the United States? By: Andrew R. Flores, Judy L. Herman, Gary J. Gates, and Taylor N. T. Brown; the Williams Institute, UCLA School of Law June 2016, pages 2-4.  Of note, the Williams Institute conducted a LGBT Data & Demographics survey of 2019 data wherein they determined : 5.3% of the adult population were LGBTQ+ and 1,19400 workers were LGBTQ+, however did not specifically note transgender status.

[2] Accelerating Acceptance, A Harris Poll Survey of Americans’ Acceptance of LGBTQ people (2017), by: GLAAD, page 4.

[3] James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi, M. (2016). Executive Summary of the Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality. December 2016.

[4] Executive Summary of the Report of the 2015 U.S. Transgender Survey. December 2016.

[5] The Economic Impact of COVID-19 Intensifies for Transgender and LGBTQ Communities of Color, Human Rights Campaign, April 2020.

[6] Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2020, Human Rights Campaign, October 2020.

[7]  Cal. Gov. Code § 12940.

[8]  Cal. Gov. Code § 12926(r)(2).