AB 1084: California mandates gender-neutral retail departments

On October 9, 2021, California enacted Assembly Bill 1084, which will be codified at Civil Code Sections 55.7 and 55.8, regarding gender-neutral retail departments. Under the new law, retail department stores that sell childcare items or toys must maintain a gender-neutral section or area, to be labeled at the discretion of the retailer, that contains a "reasonable selection" of items and toys, regardless of whether such items and toys have been traditionally marketed for girls or boys.

AB 1084 applies only to retail department stores that are physically located in California that have a total of 500 or more employees across all California retail department store locations.

The law does not apply to children's closing. Under the statute, "childcare item" means products intended to "facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething," and "toy" refers to products intended "to be used by children when they play." AB 1084 defines "children" as persons who are 12 years of age or less.

Enforcement of the law will begin on January 1, 2024, and fines will be assessed and recovered through civil actions, which may be brought by the attorney general, a district attorney, or a city attorney. The fine is $250 for the first violation and $500 for a subsequent violation. The statute also provides for reasonable attorney fees and costs.

AB 1084 targets two goals. First, it claims that it will be easier for consumers to compare products if products are displayed based on similarity rather than based on whether the product was traditionally marketed for girls or for boys. Second, the law notes that separating products by gender "incorrectly implies that their use by one gender is inappropriate."

Despite the law's stated goals, the requirements of the statute do not actually require that products be organized by similarity, and the statute does not prohibit separating products by gender. Instead, the statute requires the creation of a gender neutral section of childcare items or toys that contains a "reasonable selection" of childcare items and toys, regardless of whether the products were traditionally marketed for boys or girls.

Based on the plain language of the statute, however, there are several potential areas of dispute related to the effectiveness and enforcement of AB 1084. First, the law does not specify how large the gender neutral section or area must be, which may make it difficult to assess whether or not a retail department store has provided a sufficiently-sized gender neutral section.

Second, the statute is unclear regarding whether a section is sufficiently neutral with respect to gender. For example, the only requirement regarding the composition of the gender neutral section is that it must contain a "reasonable selection" of childcare items and toys, the definition of which is ambiguous and likely the source of future dispute. In other words, AB 1084 does not require that the gender neutral section contain a certain number of products traditionally marketed for girls or for boys. A department store may, theoretically, fill a section with only items traditionally marketed for girls, and may claim that it satisfies AB 1084 because it contains a "reasonable selection of items and toys for children, regardless of whether they have been traditionally marketed for either girls or for boys." And vice versa for products marketed for boys.

Third, because retailers have discretion over the label of the gender neutral section and because the statute does not specify the level of granularity required in terms of gender neutrality, retailers might be able to leave their products separated by gender and nevertheless comply with AB 1084 by using gender neutral labels for the sections.

Retail department stores that are physically located in California that have a total of 500 or more employees across all California retail department store locations should plan to comply with AB 1084 before January 1, 2024, which is when enforcement will begin. And given the flexibility in the statute, there are multiple ways for stores to comply. Moreover, retail department stores might see an uptick in business if AB 1084's goals are met, which are to make it easier for consumers to compare products and to correct the implication that certain products are only appropriate for one gender. Corporations may, for example, see an increase in sales because products that were traditionally marketed for only one gender are now being sold and used for all children. 