Employment Law

California’s Gender Recognition Act and Impact on Employers

By: Nadia P. Bermudez

The Gender Recognition Act was approved by Governor Jerry Brown on October 15, 2017.  It is part of a legislative and regulatory expansion of rights and protections in the areas of gender expression and gender identity for Californians.  As employers refine their policies and request information from their employees, they should be mindful of this shifting area of law designed to create equality in the workplace and beyond.

Photo of Nadia P. Bermudez
Nadia P. Bermudez

The stated policy of the 2017 Gender Recognition Act is that “every person deserves full legal recognition and equal treatment under the law and to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity.”  Therefore, the new law facilitates changes on state-issued identification and birth certificates in reference to gender identification.

Current law authorizes a person to submit to the State Registrar an application to change gender on the birth certificate and an affidavit that the request for a change of gender is to conform the person’s legal gender to the person’s gender identity. The Gender Recognition Act, effective September 1, 2018, would remove the requirement that an applicant have undergone any treatment, and instead would require a legal attestation that the change is not for an improper purpose.

The Gender Recognition Act would further authorize the change of gender on a new birth certificate to be female, male, or nonbinary.  A separate procedure for a person under 18 years of age would be in place in order for minors to seek a court order to recognize a change of gender to female, male, or nonbinary.  Additionally, the California Department of Motor Vehicles (DMV), which captures gender information, would be ordered allow an applicant for an original driver’s license or renewal of a driver’s license to choose a gender category of female, male, or nonbinary by January 1, 2019.  The DMV is required to adopt regulations to provide a process for an amendment to a gender category under these provisions.

The Gender Recognition Act, providing new government-issued identification for nonbinary persons, is in furtherance of other employment rules governing the workplace.  As such, hiring personnel at businesses will need to familiarize themselves with changes to state identifications as they request such documentation from candidates during the hiring process and for other legitimate reasons during the employment relationship.

For more information on this article, please contact Nadia Bermudez.

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