This week, Governor Jerry Brown signed into law Assembly Bill 1266, which adds a single sentence to California Education Code section 221.5 – a section that has long prohibited public schools from limiting participation in classes and programs based on the sex of the pupil. If unchallenged, AB 1266 will go into effect on January 1, 2014.

AB 1266 added this language to Education Code section 221.5:

(f) 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.

While intended by its author to provide guidance and consistency for public schools implementing existing anti-discrimination laws, AB 1266 creates significant challenges for school districts, and more confusion as well.

It is important to note that Education Code section 220 currently prohibits discrimination in the schools based on actual or perceived disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or one’s association with individuals with those characteristics. Therefore, transgender students are currently protected against discrimination in the schools, and complaint procedures are in place at the school district, state and federal levels to address allegations of bullying or other discrimination against transgender students.

The new law does nothing to strengthen these anti-discrimination laws, but it does create a new state mandate that expressly allows students to use restroom and locker room facilities of the opposite sex, but consistent with the student’s gender identity. At the same time, Education Code section 231, a long-standing statute on a similar subject, maintains that “Nothing herein shall be construed to prohibit any educational institution from maintaining separate toilet facilities, locker rooms or living facilities for the different sexes, so long as comparable facilities are provided.” Note that this provision does not address gender identity, but suggests that restroom and locker room use may be limited by sex. Additionally, the U.S. Department of Education Office for Civil Rights has issued guidance in the past regarding application of federal discrimination laws in the schools, and has stopped short of requiring school districts to allow transgender students to use restroom and locker facilities consistent with their gender identity. 

Due to the controversy surrounding this issue, we may see one or more court challenges to AB 1266 or legislative efforts to address concerns about implementation. However, in the meantime, school districts can begin preparing for January 1, 2014 by doing the following:

• Assure parents that the school district will continue to protect the rights of all students, and will develop protocols and practices that provide for a safe and orderly environment consistent with the law. 
• Review board policies and administrative procedures prohibiting discrimination based on sex, gender and gender identity to determine whether any changes are required to bring them current, regardless of whether or not revisions are needed to specifically address the restroom issue. With a spotlight on this new bill, school districts are likely to be under greater scrutiny from parents and enforcement agencies with respect to policies and practices in this area.
• Keep apprised of any developments relating to AB 1266 and how implementation of the law may be impacted before January 1, 2014.
• Work with legal counsel to develop a plan on how AB 1266 will be implemented in a manner that establishes reasonable practices and protocols to protect the rights of all students while also maintaining a safe and orderly environment.