Compliance Guidelines to Prohibit Gender Identity Discrimination
San Francisco Administrative Code Chapter 12A, 12B, 12C
San Francisco Police Code Article 33
Effective December 10, 2003
Introduction and History of Gender Identity Protection in San Francisco
In 1995 San Francisco included "gender identity" as a protected class to its nondiscrimination ordinances in response to a 1994 public hearing held by the Human Rights Commission. At that hearing, Supervisors and other City officials learned that there are transgender people in every race, class and culture, and of every age, ability, gender, and sexual orientation. The Supervisors and other City officials also learned that transgender people are subjected to severe discrimination in employment, housing and public accommodations and that no local, state or federal law provided protection and no recourse existed when discriminatory actions occurred.
Therefore, the San Francisco Administrative Codes and Police Codes were amended to prohibit discrimination based on gender identity. Since the law was changed, the Human Rights Commission has continued to receive complaints from people who are not hired, not promoted, are fired, denied housing, denied services, and denied access to facilities, and are discriminated against because of their gender identity. These guidelines are intended to assist City Departments, agencies, businesses, and organizations in complying with the law.
In this introduction, we would like to emphasize that a person’s gender identity is that person’s sense of self regarding characteristics labeled as masculine, feminine, both or neither. An individual determines their own gender identity and the sole proof of a person’s gender identity is that person’s statement or expression of their self identification.
While any given individual’s gender identity or expression may make other people uncomfortable, refusing to treat transgender or gender-variant people in the same manner as other people is a violation of San Francisco laws. The Human Rights Commission is charged with investigating complaints of discrimination based on gender identity. It has been the experience of the Human Rights Commission that most situations in which people experience discomfort or have a fear of confrontation can be addressed so that all individuals are treated with dignity and the law is not violated.
In addition to these Regulations, the staff of the Human Rights Commission is available to provide training and education, and to help create flexible implementation plans for agencies, business establishments and organizations seeking to comply with the law. For more information, visit the Human Rights Commission website at www.sfgov.org or call (415)252–2500.
TABLE OF CONTENTS
2. Definition of Gender Identity
4. Examples of Unlawful Gender Identity Discrimination
It is the law and policy of the City and County of San Francisco to eliminate discrimination based on gender identity in San Francisco and in City & County of San Francisco contracting. These guidelines supercede prior gender identity guidelines approved December 10, 1998 and are effective as of December 10, 2003.
The Human Rights Commission developed these guidelines for several purposes:
- To implement the provisions of San Francisco Administrative Code Chapters 12A, 12B, 12C and San Francisco Police Code Article 33 regarding discrimination based on gender identity;
- To provide guidance to employers, businesses, organizations, City departments, and entities contracting with the City and County of San Francisco seeking to comply with the law.
- To educate the public about gender identity law and policy so as to prevent and address discrimination.
2. DEFINITION OF GENDER IDENTITY
Chapters 12A, 12B, and 12C of the San Francisco Administrative Code and Article 33 of the San Francisco Police Code define "Gender Identity" as "a person’s various individual attributes as they are understood to be masculine and/or feminine." * Gender Identity therefore includes discrimination based upon an individual’s self-asserted gender identity and/or gender expression whether or not different from that traditionally associated with the person’s actual or perceived sex as assigned at birth.
[*12A.3(a); 12B.1(c); 12C.2; 33]
It is unlawful to discriminate against a person in employment, housing, or public accommodations, on the basis of that person’s actual or perceived gender identity, or to discriminate against a person who associates with persons in this protected category, or to retaliate against any person objecting to, or supporting enforcement of legal protections against gender identity discrimination in employment, housing, and public accommodations.
4. EXAMPLES OF UNLAWFUL GENDER IDENTITY DISCRIMINATION
A. EMPLOYMENT: Includes but is not limited to failure to hire, failure to promote, disparate treatment, unlawful termination, verbal and/or physical harassment, deliberate misuse of appropriate forms of address and pronouns, failure to make a reasonable accommodation when requested by the employee, and/or denial of access to bathroom that is appropriate to the employee’s gender identity.
B. HOUSING: Includes but is not limited refusal to show, rent, or sell real property that is available for lease or sale, addition of different or additional terms or conditions in a lease, and refusal to provide services or make repairs or improvements for any tenant or lessee, deliberate misuse of appropriate forms of address and pronouns by the landlord or property manager, tolerating harassment by co-tenants, landlords, or property managers.
C. PUBLIC ACCOMMODATIONS: Includes but is not limited to refusal to provide goods or services, disparate treatment, verbal and/or physical harassment, intentional and deliberate misuse of appropriate forms of address and/or pronouns, and/or denial of access to bathroom/restroom that is consistent with and appropriate to the customer’s or client’s gender identity.
A. BATHROOMS/RESTROOMS: Individuals have the right to use the bathroom/restroom that is consistent with and appropriate to their gender identity. The Commission wants to ensure that people of all genders have safe bathroom access. In 2016, the San Francisco Police Code was amended to require that all single-user restrooms that are open to the public or employees, in any San Francisco business establishments or places of public accommodation, are identified as all-gender restrooms (Sec. 3305.3).
B. VERIFICATION OF GENDER: Requiring proof of an individual’s gender is prohibited, except in situations where all persons are asked to verify their gender.
C. EMPLOYMENT: When requested by the employee, an employer must make reasonable accommodations for an employee’s health care needs, including but not limited to health care provider or counseling appointments, time off to recover from surgery or from a transition-related complication.
D. DRESS CODES: Employees have the right to comply with the gender-specific dress code that is appropriate to their gender identity when employers implement employee dress codes that are gender-specific.
E. ONGOING TRAINING AND POLICY COMMUNICATION: To ensure that employers understand their obligations to maintain a discrimination-free workplace, the Commission recommends that employers require all management, employees, and volunteers to receive training regarding gender identity issues. All agencies, businesses, organizations, City contractors, and City departments are required to clearly and explicitly communicate San Francisco’s laws regarding gender identity and other protected categories to all management, employees, and volunteers. In addition, all businesses within the City and County of San Francisco are required to conspicuously post the San Francisco Human Rights Commission employment non-discrimination poster in a place accessible to all employees.
F. SEX-SPECIFIC FACILTIES WITH UNAVOIDABLE NUDITY:
- All people have an equal and binding right to the access and safe use of those facilities that are segregated by sex. In sex-specific facilities, where nudity in the presence of other people is unavoidable, agencies, businesses, organizations, City contractors, and City departments shall allow an individual access and use of the facility that is consistent with that individual’s gender identity as they assert it.
- Access and use of a sex-specific facility may not be denied to any individual based on actual or perceived gender identity, gender presentation, and/or gender expression. If an individual makes such a request, reasonable accommodations shall be made to integrate the individual into the facility that corresponds with the gender identity that the individual asserts or intends to assert.
- As noted previously in Section 5B, requiring proof of an individual’s gender is prohibited, except in situations where all persons are asked to verify their gender.