Permanent Injunction Blocks RIPA’s Gender Disclosure Requirement for Officers

DAVID E. MASTAGNI
Partner
Mastagni Holstedt, APC

On May 1, 2024, Judge Christopher E. Krueger of the Sacramento County Superior Court issued a permanent injunction against the state of California, prohibiting the state, attorney general and Department of Justice (DOJ) from enforcement of RIPA’s gender disclosure requirements set forth in California Code of Regulation, Title 11, Section 999.226(a)(23). This final determination permanently blocks the state from forcing peace officers to disclose their gender identity. Timothy K. Talbot and I brought this action on behalf of PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association and the California State Sheriffs’ Association.

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 an officer 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 violated officers’ right to privacy in their gender identity, but also placed law enforcement agencies in the untenable position of choosing between incompatible laws.

Compliance with RIPA is a condition of employment for California peace officers. All 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. While RIPA does provide some limited privacy protections against public disclosures, the privacy safeguards in RIPA only allow agencies to remove the reporting officers’ identifying information from the data reported to the DOJ. The anonymized submittals to the DOJ are public records. However, nothing in the statute safeguards the privacy of the officer’s information from their employer or their co-workers. At least some agency employees must have access to information to receive the RIPA reports so that they can confirm their completeness and then redact and submit the information to the DOJ.

PORAC, et al., filed a legal action seeking a temporary restraining order (TRO) against the state of California and Attorney General Rob Bonta to halt the implementation of these gender disclosure regulations. A TRO hearing was held on January 22, 2024, where we argued 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 U.S. 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. title 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, despite PORAC’s objections.

On January 23, 2024, Sacramento Superior Court Judge Christopher E. Krueger issued the TRO, restraining the DOJ from requiring officers to disclose their gender identity and from enforcing that disclosure subsection of the new regulation. The TRO received widespread media coverage, much of which noted the stark contradiction in the concern for the privacy rights of students and disregard for peace officers’ right to privacy.

At the time, President Brian R. Marvel noted, “PORAC remains committed to protecting the rights of all our members to live as they wish, identify as they see fit and share that identity on their own terms.” He said, “[i]t 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.”

Prior to the hearing on a preliminary injunction, DOJ representatives requested to continue the hearing and engage in settlement negotiations. PORAC and CAHP insisted that any settlement must permanently prevent officers from having to disclose this sensitive personal information. Ultimately, the parties agreed to enter into a permanent injunction effectuating these goals.

Talbot and I appeared in Sacramento Superior Court to request issuance of a permanent injunction pursuant to stipulation (i.e., agreement of the parties) with the DOJ on April 30, 2024. The court initially questioned issuing a permanent injunction without a full trial and asked the parties why they did not reach a private settlement agreement. I explained that extensive evidence and declarations had already been filed in support of the TRO, as well as the need for an enforceable court order to prevent the RIPA Board from attempting to circumvent any agreement by resurrecting the required disclosure through new and revised regulations.

On May 1, 2024, the court issued an order granting a permanent injunction. The court explained, “[t]he declarations submitted by Plaintiffs with the application for the temporary restraining order, coupled with the decision by Defendants State of California, California Department of Justice and Attorney General Rob Bonta not to contest that evidence and to stipulate to the injunction, provide sufficient factual and evidentiary basis for the issuance of a permanent injunction. The Court will approve the stipulation for final judgment.”

The permanent injunction states in pertinent part:

• • “Defendants and their agents, employees and representatives are permanently enjoined from enforcing section 999.226(a)(23) of Title 11 of the California Code of Regulations, a regulation under the California Racial and Identity Profiling Act of 2015 (RIPA) that requires certain law enforcement officers to document their gender identity when performing a stop” (Gov. Code § 12525.5).
  • “Defendants and their agents, employees and representatives are permanently enjoined from requiring any individual required to comply with RIPA to provide the ‘gender of officer,’ as defined in section 999.226(a)(23) of Title 11 of the California Code of Regulations, on any disclosures required by RIPA.”

This successful litigation established important limits on the overreach of the RIPA Board while vindicating the privacy rights of every peace officer in California. On a personal level, representing law enforcement management and labor organizations collaborating to protect their respective employees and members is particularly gratifying.

About the Author

David Emilio Mastagni is a partner with the law firm of Mastagni Holstedt, APC, and an experienced panel attorney for the PORAC Legal Defense Fund. He also provides legal analysis and representation for PORAC at the California Legislature on bills affecting public safety employees.