By Eric Gelber
What problem/issue would the bill address?
Proposed and enacted legislation in California and nationally has addressed issues of gender neutrality by places of public accommodations. In California, for example, the Gender Tax Repeal Act of 1995 outlawed gender-based price discrimination in the provision of services, such as dry-cleaning. A bill currently pending in the state Legislature—AB 1287 (Bauer-Kahan)—would prohibit the charging of different prices for any two goods that are substantially similar if those goods are priced differently based on the gender of the individuals for whom the goods are marketed and intended.
Much attention has been given recently to so-called “bathroom bills” that focus on limiting or extending trans and gender non-binary individuals’ rights to use sex-segregated public restrooms. The U.S. House of Representatives recently passed H.R.5, the Equality Act, that would expand civil rights law to prohibit LGBTQ and gender identity discrimination in public accommodations, education, federally funded programs, housing, employment, etc. On the other hand, dozens of bills have been introduced in state legislatures that would negatively impact transgender and other LGBTQ individuals.
AB 1084 (Low) addresses the practice of many retail establishments to display products marketed either for girls or for boys in separate sections. This practice arguably reinforces gender stereotypes and maintains outdated social constructs.
What would the bill do?
AB 1084 would require a large retail department store (with 500 or more employees) that sells childcare items, children’s clothing, or toys to maintain a gender-neutral section or area in which a reasonable selection of the items it sells are displayed, regardless of whether they have been traditionally marketed either for girls or for boys. The new law would take effect on January 1, 2024.
AB 1084 is sometimes referred to as “Britten’s Bill” because it was inspired by nine-year-old Britten Sires, a self-described feminist who has been fighting to break down gender roles. “I was like, wait, why is there a boy’s section? I’m a girl, but I want to go in it,” Britten said.
She noticed two main differences between the boys’ and girls’ departments that made her feel uncomfortable: “Boys is more like knowledge and trying to get them smarter so they can get into a good college and get a good job, and then women’s is more like makeup and cooking sets.”
As an example, Britten recently went to the mall with her parents. She was in the girls’ section, but she needed a science kit. When she enquired where she would get it, the store clerk pointed at the boys’ section. This made Britten question why she would buy something that she needs from the boys’ section. She felt ashamed to enter that section and had insecurities about it. She also had questions and thoughts about why the science kit wasn’t available in the “girls’” section.
The bill was also inspired by Target, which made the decision in 2015 to abolish gendered kids’ sections.
According to the bill’s author, “[u]njustified differences in similar products that are traditionally marketed either for girls or for boys can be more easily identified by the consumer if similar items are not separated by gender. Combining boy’s and girl’s departments at retail stores with 500 or more employees into a “kids” department or creating a gender-neutral section will most definitely make all kids feel welcomed.”
AB 1084 is sponsored by The Phluid Project, a gender-free fashion brand that says it “exists to empower individuals to be themselves. To express themselves openly, without judgment or fear—only freedom.”
In support of AB 1084, the sponsor asserts that “[t]he rising voice of today’s youth rejects gender binaries and desire an all-encompassing space, both physically and virtually, that allows them to wear what makes them feel good and express themselves with freedom and authenticity. This bill begins the process of eliminating dated social constructs, allowing youth to be creative, curious and authentic, free to be who they want to be and unleashing their full potential. Corporations will benefit from this movement as youth, and their parents, look to find gender non-specific options as they grow up in a new and evolving world. We constantly live in a state of unlearning and relearning. This bill carries us all into the future, further creating safe and affirming shopping spaces throughout the entire state of California.”
In opposition to AB 1084, the Siskiyou Conservative Republicans argue that “[a] ‘store’ is private property no matter how many employees they employ. They are in business to sell as much merchandise as possible to as many people as possible. Merchants are in the business to sell their goods not to do social engineering. The free-market place is driven by demand of their customers not by laws made by politicians.
“It is not the business of the state to parent their constituents’ children nor to dictate to businesses how to organize or display their merchandise. The state has no authority to meddle in the details of how retailers market or display their products.”
AB 1084 is scheduled to be heard in the Assembly Committee on Business and Professions on April 6th. If passed, it will next be heard in the Assembly Judiciary Committee.
Eric Gelber, now retired, is a 1980 graduate of UC Davis School of Law (King Hall). He has nearly four decades of experience monitoring, analyzing, and crafting legislation through positions as a disability rights attorney, Chief Consultant with the Assembly Human Services Committee, and Legislative Director of the California Department of Developmental Services.
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