UPDATE 2016: Following a settlement in this lawsuit, California’s Department of Fair Employment and Housing issued new guidance for California employers on transgender employees.
Last week, in a case of first impression, Sacramento Superior Court Judge David Brown held that California’s Fair Employment and Housing Act (FEHA) prohibits employers from requiring transgender workers to use restrooms and locker rooms based on their assigned birth sex.
Nick Lozano is a transgender male who presents and dresses in conformity with his male gender identity. He applied for, and accepted, a position as Operations Technician at AMPAC, a pharmaceutical ingredients manufacturer. Before starting the job, Mr. Lozano disclosed his transgender status, and that he would be undergoing sex reassignment surgery. AMPAC reacted by instructing Mr. Lozano that he would have to use the women’s restroom until he completed his surgery. Mr. Lozano then declined the position.
The Department of Fair Employment and Housing (DFEH) filed a complaint against AMPAC in California Superior Court, alleging discrimination on the basis of gender identity by AMPAC against Mr. Lozano.
In response, AMPAC filed a demurrer, a request that the Court dismiss the case for failure to state a claim. DFEH opposed the request with support from LAS-ELC, the Transgender Law Center, the ACLU Foundation of Northern California, Inc., Equality California, Gay-Straight Alliance Network, Gender Spectrum, and the National Center for Lesbian Rights. The Court ruled against AMPAC.
In an important step for the rights of transgender workers, the Court explicitly rejected AMPAC’s hypothetical assertions of discomfort by other employees regarding the sharing of facilities with transgender workers.
AMPAC must now respond to the DFEH’s complaint.
The amicus brief Transgender Law Center filed and the final order denying the demurrer can be found below.