By David Mastagni and Taylor Davies-Mahaffey
On January 1, 2024, new California Racial and Identity Profiling Act (RIPA) regulations went into effect, forcing police officers to disclose their own gender identity any time they submit a RIPA report to their employing agency. The new regulations required, among other new disclosures, that officers disclose whether they are cisgender, transgender or nonbinary on a form that is reviewable by other department employees. This aspect of the regulation not only violates employees’ right to privacy in their gender identity but also places law enforcement agencies in the untenable position of choosing between incompatible laws.
On January 23, 2024, Sacramento Superior Court Judge Christopher E. Kruger issued a temporary restraining order (TRO), restraining the Department of Justice (DOJ) from requiring officers to disclose their gender identity and from enforcing that disclosure subsection of the new regulation.
Compliance with RIPA is a condition of employment for California peace officers, and all of the RIPA reporting information must be submitted by officers to their employing agency, which must review, approve, anonymize, and then submit the information to the DOJ. The privacy safeguards in RIPA only allow agencies to remove the reporting officers’ identifying information from the data reported to the DOJ. Nothing safeguards the privacy of the officer’s reporting to their employers when submitting RIPA reports.
As such, the gender identity disclosure requirement directly conflicts with the California Fair Employment and Housing Act (FEHA) anti-discrimination laws and officers’ right to privacy under the California and United States Constitutions.
FEHA states, “It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment.” (Cal. Code Regs. tit. 2, § 11034(i)(1).) The Attorney General has openly admitted Californians possess a right to privacy in their gender identity. In a recent legal alert regarding gender identity privacy rights, the Attorney General stated, “Forced disclosure policies violate students’ California constitutional right to privacy” and that “an individual has a constitutionally protected privacy interest in their sexual orientation or gender identity.” Paradoxically, his DOJ refused to afford peace officers these same privacy rights by enacting this regulation over objections.
PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association and the California State Sheriffs’ Association filed a legal action seeking a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations. David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court on January 22 to request the TRO.
On January 23, the Court issued its order, granting the TRO and halting the DOJ’s enforcement of the gender disclosure requirements pending a hearing set for March 19 on the issuance of a preliminary injunction.
“PORAC remains committed to protecting the rights of all our members to live as they wish, identify as they see fit and to share that identity on their own terms,” PORAC President Brian R. Marvel said. “It is not fair or right to put officers in the untenable position of disclosing their gender identity before they are ready to do so and as a condition of employment.” Read PORAC’s press release here.
The San Francisco Chronicle issued an article on January 23 covering the case and quoting David Mastagni. You can read the full article on their website here.