Sex discrimination: scope

The law directs that protections against sex, gender, or similar discrimination cover gender identity and expression, reproductive health decisions, sexual orientation, and intersex traits. It applies the more protective rule where state-law definitions conflict.

What the law does ​

• Requires state-law bans on sex or gender discrimination to be read as bans on broadly defined sex discrimination.
• Includes harassment, discrimination based on actual or perceived traits, gender-affirming care, pregnancy-related conditions, and reproductive-health decisions within that definition.
• Adds the definition to the Unruh Civil Rights Act and the Fair Employment and Housing Act.
• Preserves broader civil-rights protections elsewhere and requires these provisions to be interpreted liberally.
• Conditionally includes perimenopause, menopause, postmenopause, and related medical conditions if AB 1940 also takes effect.

Who it affects ​

• Employees, job applicants, students, consumers, and people seeking services under state-regulated programs.
• Businesses, employers, schools, public entities, contractors, insurers, and other entities subject to state anti-discrimination rules.
• People who are pregnant, have pregnancy-related conditions, make reproductive-health decisions, are LGBTQ+, or have intersex traits.

Context ​

The Legislature states that the law clarifies existing constitutional protections rather than expanding or reducing rights or responsibilities.

Breakdown ​

Broadening Sex-Discrimination Protections ​

The bill requires state laws that ban sex-, gender-, or similar discrimination to be read as banning sex discrimination broadly. It defines sex discrimination to include discrimination based on specified actual or perceived traits or actions, including how closely a person conforms to sex or gender stereotypes. It also directs courts and officials to interpret these protections broadly to carry out constitutional equality, privacy, safety, happiness, reproductive freedom, and employment protections.

Key takeaways

• State anti-discrimination laws referring to sex, gender, or similar grounds must be interpreted to prohibit sex discrimination.
• Sex discrimination includes discrimination based on specified actual or perceived characteristics or actions.
• The definition includes discrimination based on a person’s degree of conformity to sex or gender stereotypes.
• The bill states that this interpretation reflects protections already provided by specified provisions of the California Constitution.
• These provisions must be interpreted broadly to advance the constitutional protections they are intended to carry out.

Broader Sex Definition in Businesses ​

The bill expands what “sex” means under the Unruh Civil Rights Act, which bars discrimination by business establishments. It adds all characteristics included in the bill’s definition of sex discrimination to the Act’s definition of sex.

Key takeaways

• Businesses covered by the Unruh Civil Rights Act may not deny equal services or accommodations based on the newly included sex-related characteristics.
• The Act already includes pregnancy, childbirth, and related medical conditions in its definition of sex.
• The bill ties the Act’s definition of sex to the broader characteristics listed in the bill’s sex-discrimination definition.

Expanding the Definition of Sex ​

The bill expands FEHA’s definition of “sex.” It states that sex includes the characteristics covered by the bill’s definition of sex discrimination, which applies in FEHA employment and housing cases.

Key takeaways

• The bill adds to FEHA’s definition of “sex.”
• Under the bill, sex includes the characteristics identified in the bill’s definition of sex discrimination.
• This expanded definition applies to FEHA’s rules against unlawful employment and housing discrimination.
• People bringing FEHA complaints can rely on the expanded definition in alleging sex discrimination.

Coordinating Changes With AB 1940 ​

If both AB 2563 and AB 1940 become law, and AB 2563 is enacted last, AB 2563 will also include AB 1940’s proposed updates to Civil Code Section 51 and Government Code Section 12926. This condition is meant to coordinate the two bills’ changes to those sections.

Key takeaways

• The additional changes apply only if both AB 2563 and AB 1940 are enacted.
• AB 2563 must be enacted after AB 1940 for these additional changes to take effect.
• The coordinated changes affect Civil Code Section 51.
• The coordinated changes also affect Government Code Section 12926.

Menopause-Related Sex Discrimination ​

If AB 1940 becomes law by January 1, 2027, and changes the specified Government Code section, this part of AB 2563 will take effect. It expands sex discrimination protections to cover discrimination based on actual or perceived perimenopause, menopause, postmenopause, and related medical conditions.

Key takeaways

• This provision takes effect only if AB 1940 is enacted, takes effect by January 1, 2027, and amends Government Code Section 12926.
• The bill adds actual or perceived perimenopause, menopause, and postmenopause to the definition of sex discrimination.
• The protection also covers medical conditions related to perimenopause, menopause, and postmenopause.