Since the Governor signed AB 1266, school districts and other education agencies have been inundated with questions from the media, parents, and students about what the new law means to the schools. This Legal Alert is intended to provide the background behind AB 1266 as well as practical guidance on implementing the requirements of the law which take effect January 1, 2014.
A. Existing Law
Section 220 California Education Code states “[n]o person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic . . . in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance . . .” Cal. Educ. Code § 220.
Section 200 of the Education Code states, “[i]t is the policy of the State of California to afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation . . . equal rights and opportunities in the educational institutions of the state.” Cal. Educ. Code § 200. Section 201 goes on to state, “California’s public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity. Cal. Educ. Code § 201. See also Cal. Civ. Code § 51 (defining gender in the same language).
The Education Code also defines gender: ““[g]ender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Cal. Educ. Code § 210.7.
The California Code of Regulations also defines gender and sex stating, ““Gender” means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth; and “[s]ex” means the biological condition or quality of being a female or male human being.” Cal. Code Regs. tit. 5, § 4910 (k), (v).
Under Section 221.5, the provision amended by A.B. 1266, “[i]t is the policy of the state that elementary and secondary school classes and courses, including nonacademic and elective classes and courses, be conducted, without regard to the sex of the pupil enrolled in these classes and courses.” Cal. Educ. Code § 221.5(a).
Under federal law, “[n]o person shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance….” 20 U.S.C. § 1681.
B. New Law
A.B. 1266 adds the following language to Section 221.5(f) to the Education Code: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”
Students, as of January 1, 2014 have a clear right to access the school facilities consistent with their gender identity, irrespective of the gender listed on their school records. This means that students must be allowed access to the bathroom and locker room that is consistent with their gender identity as that identity is asserted at school.
Additionally, as of January 1, 2014, it is clear that students have the right to participate in CIF sports consistent with their gender identity irrespective of the identity listed on their school records.
C. Purpose of the new law
According to the bill’s author, Tom Ammiano (D-San Francisco), “Although current California law already protects students from discrimination in education based on sex and gender identity, many school districts do not understand and are not presently in compliance with their obligations to treat transgender students the same as all other students in specific areas addressed by this bill…. Current law is deficient in that it does not provide specific guidance about how to apply the mandate of non-discrimination in sex segregated programs, activities and facilities.” In other words, the bill was passed to address inconsistent treatment of transgender students in sex-segregated programs and facilities according to existing laws by providing specific guidance.
However, there have been varying accounts of the impact that the new law will have on existing policy and the practical implications on individual schools, school districts, students, and families. This bill will essentially remove the discretion a school or district had to deal with issues of students whose gender identity does not match the gender listed on their school records on an ad hoc basis.
Some policies and/or guides for addressing transgender issues in school districts address the terminology that is commonly used. Los Angeles Unified School District (LAUSD), for example, states that these terms are not to be used as labels but instead as “functional descriptors.” Definitions are a key part to understanding transgender issues in schools. The following definitions are from the American Psychological Association’s publication, “The Guidelines for Psychological Practice with Lesbian, Gay, and Bisexual Clients:”
“Sex refers to a person’s biological status and is typically categorized as male, female, or intersex (i.e., atypical combinations of features that usually distinguish male from female). There are a number of indicators of biological sex, including sex chromosomes, gonads, internal reproductive organs, and external genitalia.
Gender refers to the attitudes, feelings, and behaviors that a given culture associates with a person’s biological sex. Behavior that is compatible with cultural expectations is referred to as gender-normative; behaviors that are viewed as incompatible with these expectations constitute gender non-conformity.
Gender identity refers to one’s sense of oneself as male, female, or transgender. When one’s gender identity and biological sex are not congruent, the individual may identify as transsexual or as another transgender category.
Gender expression refers to the … way in which a person acts to communicate gender within a given culture; for example, in terms of clothing, communication patterns and interests. A person’s gender expression may or may not be consistent with socially prescribed gender roles, and may or may not be consistent with socially prescribed gender roles, and may or may not reflect his or her gender identity.” American Psychological Association, Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation.
Transgender “is an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth.” American Psychological Association, Answers to Your Questions About Transgender People, Gender Identity, and Gender Expression.
Transsexual refers to people whose gender identity is different from their biological sex and includes people who have had gender reassignment surgery and those who have not.
III. Existing Board Policies in Other Districts and Model Policies
Several school districts have developed policies designed to deal with transgender and gender identity issues. LAUSD, Oakland Unified School District and San Francisco Unified School District all have policies and regulations which already address transgender and gender identity issues. The policies are comprehensive and include guidelines for dealing with the following:
Locker room accessibility;
Sports and physical education;
Dress codes/school uniform policies;
These policies are all available on each school district’s website. Additionally, California Safe School’s Coalition has also developed a model policy for use by school agencies. California Safe School’s Coalition is a statewide partnership of organizations working to eliminate discrimination and harassment on the basis of sexual orientation and gender identity. Their policy can be found at http://www.safeschoolscoalition.org/lawpolicy-models.html
IV. California Interscholastic Federation (CIF) Policy
A. Gender Identity Policy
The CIF bylaw that address “Gender Identity Participation” is Section 300, subsection D:
“Participation in interscholastic athletics is a valuable part of the educational experience for all students. All students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records. The student and/or the student’s school may seek review of the student’s eligibility for participation in interscholastic athletics in a gender that does not match the gender assigned to him or her at birth, should either the student or the school have questions or need guidance in making the determination, by working through the procedure set forth in the “Guidelines for Gender Identity Participation.”
NOTE: The student’s school may make the initial determination whether a student may participate in interscholastic athletics in a gender that does not match the gender assigned to him or her at birth. (300.D. Approved February 2013 Federated Council)[.]”
B. Gender Identity Participation Process
Under CIF “Guidelines for Gender Identity Participation,” begins with the statement, “[a]ll students should have the opportunity to participate in CIF activities in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.” California Interscholastic Federation, Guidelines for Gender Identity Participation
The CIF Guidelines provide a step-by-step process by which a student can participate in CIF sports consistent with their gender identity. The steps are:
i. Notice to the school indicating consistent gender identity different from the gender listed on the student’s school registration records and that the student wants to participate in activities in a manner consistent with his/her gender identity.
ii. Notice to CIF, a facilitator will be assigned who will assist the school site in the CIF Gender Identity eligibility appeal process.
iii. First level of appeal with a panel including a physician with experience dealing with gender identity health care and the World Professional Assoc. for Transgender Health Standards of Care, a psychiatrist, a school administrator from non-appealing school, a CIF staff member, and an advocate familiar with gender identity and expression issues.
iv. The student will provide documentation which will be a transcript and school registration information, documentation of student’s consistent gender identification (e.g., “affirmed written statements from student and/or parent/guardian and/or health care provider”), and any other relevant information.
v. Second level of appeal is available if the student is unhappy with the initial determination.
It is important to note that the CIF also allows the individual schools to make the initial determination regarding whether a student can participate in CIF sports consistent with their gender identity.
V. Potential Issues That May Be Addressed In a School Board Policy
It is anticipated that the following areas of student life may need to be addressed in a policy that addresses when a transgender student wishes to have their gender identity recognized and when they desire access to school facilities and sex-segregated activities consistent with their gender identity when it is different from their biological sex:
A. Sports participation;
B. Bathroom access;
C. Locker room access;
D. School records;
E. School uniforms and dress codes;
F. Field trips;
G. Other sex-segregated activities;
I. Defining transgender;
J. Defining gender identity;
K. How are transgender, transsexual students identified?
L. Gender fluid students.
M. Other possible areas of consideration.
N. Privacy of transgender students as well as privacy of the general student body.
This list is not intended to be exhaustive, but rather addresses some of the already recognized challenges associated with providing access and equal opportunities for transgender students, as well as potential issues that may arise for their classmates. While no policy or procedure can address every potential issue that may arise for any given transgender student, it is recommended that policies, regulations, and procedures be put into place that comply with the law and provide information and guidance to students, staff, administrators, and the public.
Many of these issues are still open questions. It is encouraged that school board policies are drafted to address the way in which transgender students can be identified in order to provide them with whatever level of support and engagement the district and/or school site can provide. In addition, by providing an accessible process that allows a student to self-identify as transgender, a school district can foster a safe-environment for transgender students with a policy that also complies with all applicable state and federal laws.
For example, the Oakland USD board policy uses the phrase “consistently and exclusively” to describe transgender students. If a student has consistently and exclusively identified as a gender that is different from that listed on their school record, then they fall within the Oakland USD policies and can access facilities and other sex-segregated programs.
Each district should work closely with their legal counsel with public input in order to develop a board policy that works best locally.
VI. Possible Solutions to Privacy Concerns
Each student, transgender or otherwise, has individual concerns and challenges. Creating a board policy that addresses privacy and safety concerns of all students is very important. This will give school districts an opportunity to protect the rights and interests of all involved. In each board policy or model policy addressed above, these issues are dealt with in different ways, ranging from very little information to providing examples that each school site can use to address these issues. This section is intended to provide a synopsis of what some of those examples are.
A. Gender neutral bathrooms available for all students
Under A.B. 1266, a school cannot mandate that any student use gender neutral bathrooms, but it can be offered as an option to all students who have any privacy concerns.
If safety or privacy is a concern for a transgender student, providing an alternative schedule for accessing locker rooms, such as before or after the rest of the students would normally be using the locker rooms can be offered as an option.
Especially where safety or harassment is a concern, increased supervision can be used to protect the privacy and safety of all involved.
D. Provide other areas to change to all students
Especially with regard to privacy, if students need increased privacy it is possible to offer areas of increased privacy, such as an adjacent office, bathroom stalls, gender neutral bathrooms, or installing a curtain thereby creating a more private area within a more public area.
There are a variety of other potential solutions available and each school district must address this issue in a manner that is appropriate and complies with A.B. 1266 and other nondiscrimination laws.
VII. Complaint Procedures
School districts should consider including complaint procedures for addressing these issues for all concerned. Complaints can be handled through the Uniform Complaint Procedures.
School districts may consider education and outreach to staff and potentially students in order to address potential conflicts that may arise such as parent opposition, student opposition, and staff opposition.
VIII. Other Considerations
A. Public records requests
The Education Code requires that schools keep pupil records private. Cal. Educ. Code § 49060 et seq. Private information such as transgender status will fall within this code requirement and should not be released.
B. Family Educational and Privacy Rights (FERPA)
FERPA is federal law that protects the privacy of students’ education records. 20 U.S.C.A. § 1232g. In short, FERPA provides that schools may only disclose information in school records with written permission from a student’s parents or from the student after the student reaches the age of majority with specific exceptions (e.g., school officials with a legitimate educational interest, other schools to which the student is transferring, appropriate parties in connection with financial aid, etc.).
Under FERPA, school districts and their school sites will continue to be required to follow this law with regard to the privacy of transgender students.
IX. What other resources are available?
Kronick, Moskovitz, Tiedemann & Girard
KMTG has developed a Parent Q & A document which can be individually tailored to a specific school district and their specific needs. This Q & A is not required under the law but is one way districts can reach out to their community and inform them of the law. This Q & A is also available in Spanish. Please contact the KMTG attorney you work with if you are interested in the Parent Q & A.
KMTG will be offering further information and training on this topic as it develops. The information regarding what will be available is currently being developed.
CSBA is currently working on model policies and guidelines that will help to address the law as it reads under A.B. 1266; those policies and guidelines are due out later this year.
Transgender Law and Policy Institute: http://www.transgenderlaw.org/
Gender Spectrum: https://www.genderspectrum.org/
American Psychological Association: http://www.apa.org/topics/sexuality/transgender.aspx
California Safe Schools Coalition: http://casafeschools.org/