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Transgender Rights, Regulation No. 11034

California’s Code of Regulations, § 11034 addresses specific circumstances affecting transgender employees and set forth requirements that employers must follow.  Among them are the following:

A. Employers Cannot Ask Applicants about their Sex or Gender. 

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Employers are generally prohibited from asking, either directly or indirectly, about an individual’s sex or gender  Job applications should no longer include any such questions unless the employer can establish a specific business or safety necessity.   Nor can employers require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment. For certain specific recordkeeping purposes under California regulations, an employer may request an applicant to provide this information solely on a voluntary basis.

Discrimination against an applicant who fails or refuses to designate male or female on an application is also prohibited. 

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B. Employers Must Use the Employee’s Preferred Name & Gender Pronoun.

The law recognizes the importance of an employee’s request to be identified by a preferred name or gender. An employer who fails or refuses to comply with this request may be liable for discrimination under the FEHA.  An employer can however use an employee’s legal name and gender rather than the employee’s preferred name and gender only when it is necessary to meet legally-mandated obligations, such as IRS documentation or reports to other government agencies. 

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C. Employees Need Only Comply with the Dress Codes of Their Gender Identity or Expression.

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If your employer has standards for physical appearance, grooming, or dress, they cannot require you to conform to a standard that is inconsistent with your gender identity or gender expression unless they can establish a business necessity.  

An employee's attire should remain professional and appropriate for the workplace depending on the position that the employee holds.  Still, an employee should be able to dress in the manner consistent with their gender identity. Employers must be prepared to make reasonable accommodations if needed to assist a transgender, genderfluid, agender or transitioning employee.

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D. Employees Must Be Allowed to Perform Duties That Correspond to Their Gender Identity or Expression.

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The law generally prohibits employers from assigning job duties according to sex stereotypes.  Only in very limited circumstances can an employer exclude an entire group of individuals on the basis of sex such as under what is known as the Bona Fide Occupational Qualification or “BFOQ” defense.  Even then, employers must permit employees to perform jobs or duties that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.   Personal privacy considerations may justify a BFOQ only where the job requires observation of others in a state of nudity or body searches and it would otherwise offend prevailing social standards and cause detriment to the mental or physical welfare of individuals being observed or searched.

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E. Employees Must Be Allowed to Use Restroom Facilities that Correspond to Their Gender Identity or Expression. 

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Employers should change the signage of single-user restrooms to ensure that they are gender neutral. Terms such as “Restroom,” “Unisex,” “Gender Neutral,” and “All Gender Restroom” are given as examples of appropriate signage.   Multi-user restrooms can be equipped with locking toilet stalls or other feasible alternatives to respect the privacy interests of all employees.  Likewise, showering stalls can be equipped with shower curtains or used with staggered schedules, or other feasible methods can be implemented for ensuring privacy. However, an employer may not require an employee to use a particular facility.

Note that the employer is permitted to make “a reasonable and confidential inquiry of an employee for the sole purpose of ensuring access to comparable, safe and adequate multi-user facilities.”  

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For more information about the 

Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression :

https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf

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Section 11034 is part of a broader framework that protects LGBTQ+ rights. Learn more.