Background

The California Police Chiefs Association (“CPCA”), California State Sheriffs’ Association (“CSSA”), Peace Officers Research Association of California (“PORAC”), California Association of Highway Patrolmen (“CAHP”), Brian Marvel, and Jake Johnson recently filed an action against the California Attorney General and the Department of Justice seeking declaratory relief and injunctive relief preventing the DOJ from enforcing a regulation mandating that law enforcement officers report their gender on stop reports required by the Racial Identity and Profiling Act of 2015 (“RIPA”).  (See Cal. Code Regs. Tit. 11, section 999.226(a)(23) [the “Regulation” regarding gender identity disclosure requirements]).

Discussion

As law enforcement is aware, the California Racial and Identity Profiling Act of 2015 (“RIPA”) was created “for the purpose of eliminating racial and identity profiling, and improving diversity and racial and identity sensitivity in law enforcement.”  (Pen. Code, § 13519.4(j)(1).)  RIPA requires law enforcement agencies to report enumerated categories of data to the DOJ related to all vehicle and pedestrian stops, with some exceptions.  A separate report is required each time an officer makes either vehicle or pedestrian stops.  RIPA further provides that:  “Each state and local agency that employs peace officers shall annually report to the Attorney General data on all stops conducted by that agency’s peace officers for the preceding calendar year.” (Gov. Code, § 12525.5(a)(1).)

An officer is required to “complete all stop reports for stops made during their shift by the end of that shift unless exigent circumstances preclude doing so.  In such circumstances, the data shall be completed as soon as practicable.”  (Cal. Code Regs. tit. 11, § 999.227(a)(9).)  RIPA requires that each reporting agency create an “Officer’s I.D. Number . . . for each officer required to report stops under these regulations,” and that the agency “maintain a system to match an individual officer to their Officer’s I.D. Number.”  (Cal. Code Regs. tit. 11, § 999.227(a)(11).)

The reporting agency is the single repository that contains both an officer’s name and their unique identification number, enabling the employer to match reports to a particular officer.  RIPA regulations state that “[i]n order to ensure compliance with these regulations, a reporting agency . . . may review the stop data to correct errors before submitting the stop data to the Department,” (Cal. Code Regs. tit. 11, § 999.227(a)(10)), permitting employers to compare an officer’s name with the data that the officer details in the stop reports.  Government Code section 12525.5, subdivision (e), authorizes the Attorney General to issue regulations to “specify all data to be reported” under RIPA.

On July 9, 2021, the DOJ published a Notice of Proposed Rulemaking Action and an Initial Statement of Reasons to amend RIPA.  There was a 45-day Comment Period from July 9, 2021 to September 3, 2021.  These revisions added the data element “Gender of Officer,” which is defined as “the officer’s identified gender” under Cal. Code Regs. Tit. 11, section 999.226(a)(23), herein referred to as the “Gender Identity Regulation.”  The Gender Identity Regulation states that an officer “shall select” all applicable categories.  The Gender Identity Regulation requires that a reporting officer choose from the following options: 1) Cisgender man/boy; 2) Cisgender woman/girl; 3) Transgender man/boy; 4) Transgender woman/girl; and 5) Nonbinary person.  There is no option to decline disclosure.

Over the consistent objections of the plaintiffs in this case, on August 12, 2022, the Office of Administrative Law approved the RIPA amendments, including the Gender Identity Regulation.  The Regulation became effective January 1, 2024.  The Regulation requires law enforcement employers to mandate that peace officers in their employ report their gender identity to their employer in their RIPA stop reports.  An employer must have the officer names that correspond with the unique identifying numbers in order to report the information to the DOJ and to ensure that their employees are complying with its requirements.

The plaintiffs in this case, representing a broad coalition of law enforcement employer and employee organizations, along with individuals, filed a complaint with the Superior Court noting that the Regulation was in conflict with several other provisions of law.  These other provisions of law prevent employers from demanding gender identity information from their employees.  The complaint also asserted that the Regulation violated law enforcement officers’ privacy rights under the California Constitution.  The plaintiffs sought injunctive relief restraining enforcement of the Regulation by the DOJ, including a temporary restraining order, preliminary injunction and permanent injunction.

On January 22, 2024, County of Sacramento Superior Court Judge Christopher E. Krueger heard the matter.  The Court subsequently issued a temporary restraining order (“TRO”) restraining the DOJ from enforcing the Regulation mandating gender reporting of officers pending a preliminary injunction hearing.  Please see the attached hyperlink at the end of this alert.

The Court also ordered the preliminary injunction hearing as to why the defendants State of California, DOJ, and Attorney General Rob Bonta (and their agents, employees, and representatives) should not be enjoined and restrained from:

  1. Enforcing Cal. Code Regs. Tit. 11, section 999.226(a)(23); and 
  2. Requiring any individual required to comply with The California Racial and Identity Profiling Act of 2015 (“RIPA”) to provide the “gender of officer” on any disclosures required by RIPA.

The preliminary injunction hearing is scheduled on March 19, 2024.

We will further advise you on this matter as developments arise.

HOW THIS AFFECTS YOUR AGENCY

As the TRO currently is in effect restraining the DOJ from enforcing the Regulation, employers may wish to carefully consider requiring employees to complete the RIPA report with gender identity information.  Agencies may wish to suspend collection, and certainly transmission of this data to DOJ, during the pendency of these proceedings until the Court has further opportunity to review and make additional findings on this issue.  Agencies should note that, as part of ruling on the TRO, the Court is required to examine the likelihood of prevailing on the asserted claims.  While the Court’s decision is not a final determination at this time, it does currently have a binding effect.  Agencies should consult their retained legal advisor to determine the proper course of action with respect to the collection of data required by the Regulation in order to avoid violating employee rights.

As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship. 

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