A New Law to Raise GINA’s Floor in California

Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a post-doctoral researcher at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.

Earlier this fall, California Governor Jerry Brown signed SB559 (pdf), the bill referred to as “CalGINA” (i.e., the California Genetic Information Nondiscrimination Act). The bill was double-jointed with AB887 (pdf), the Gender Nondiscrimination Act, which ultimately meant that CalGINA would only take effect if Governor Brown also signed AB887 into law. He did so on October 9, 2011, so both laws are scheduled to take effect on January 1, 2012.

The Gender Nondiscrimination Act, AB887, clarifies that existing non-discrimination laws are intended to provide protection not just for sex but also gender, gender identity, gender expression, and sexual orientation. “Gender expression” is defined to include “gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

The CalGINA, SB559, which has been discussed previously here at the Genomics Law Report, amends existing non-discrimination laws (namely the Jesse Unruh Civil Rights Act and the Fair Employment and Housing Act) to also prohibit discrimination on the basis of genetic information. It mimics the federal Genetic Information Nondiscrimination Act (GINA, Pub. Law 110-233), in its definition of genetic information: genetic information does not include information about an individual’s sex or age, but the definition does include genetic tests of an individual, genetic tests of an individual’s family members and family medical history.

The legislative intent explicitly described the scope of the federal version of GINA as “incomplete for Californians” (Section 1(j)). Unlike the federal GINA, which provides limited non-discrimination protection in the areas of employment and health insurance, CalGINA extends non-discrimination protection to additional areas, including the following:

  1. Receipt of emergency medical services and care;
  2. Recording and enforcement of restrictive covenants affecting interests in real property, including sales and rentals (fair housing);
  3. Receipt of services, access to facilities, accommodations, and privileges “in all business establishments of every kind whatsoever” (business and professions);
  4. Distribution of alcoholic club licenses;
  5. Provision of financial assistance for purchase or construction of housing (mortgage-lending); and
  6. Participation of any state-funded or state-administered activity or programs.

Additionally, CalGINA amends the Education Code to require public schools, particularly high schools, to have access to additional resources and to include programs designed to prevent hate violence. Ultimately, CalGINA amends the Business and Professions Code, the Education Code, the Elections Code, the Government Code, the Penal Code, the Revenue and Taxation Code, and the Welfare and Institutions Code.

Although signed into law in 2008, GINA is still in its infancy, with final regulations for Title I (covering health insurers) yet to be published (interim final regulations are here) and final regulations for Title II (covering employers) barely a year old. Furthermore, while GINA is a federal statute, it serves only to set the national floor for protections against genetic discrimination in employment and health insurance contexts by preempting any state statutes that are considered less protective.

CalGINA expands the scope of protections into areas other than employment and health insurance contexts and potentially increases the available remedies, as interpreted here for example. Even prior to GINA, some states had more stringent genetic nondiscrimination legislation on their books and, since GINA’s passage, other states (like Vermont and Massachusetts, in addition to California) have sought to follow suit.

As GINA becomes more familiar to states, insurers, employers and the public, expect the federal law and its state-level counterparts to begin to make more frequent appearances in the courtroom, where the issue of federal preemption may increasingly become relevant in litigation of genetic discrimination claims, a matter the GLR has covered previously with regard to HIPAA.