A Pledge to End Discrimination:The Implications of A.B. 1266

Presented by Namita S. Brown and Laura PrestonACSA CEL InstitueFebruary 27, 2014

Transgender StudentsNational Survey Results

• 89.5% report feeling unsafe at school• 55% report being physically harassed at school because

of their gender expression• 81% report being sexually harassed at school because of

their gender expression• 82% report that faculty or staff either never intervened or

only sometimes intervened when they heard other students make derogatory remarks.

• A significant number reported that the adults actually made the remarks

• 67% had their property stolen or deliberately damaged at school

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First, A Word on Nomenclature

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What Does Transgender Mean?

• A transgender person is someone whose sex, gender, and/or gender expression differs from the one assigned to them at birth. There are over 100 different transgender identities.

• A child will firmly assert over time that their gender identity is the opposite of that which was assigned at birth. “I’m in the wrong body”

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Gender Nonconforming

• Generally a child is less adamant about who they are, but will stubbornly assert what toys they do or don’t like, clothes they will or will not wear, or activities they do or don’t prefer irrespective of their assigned gender.

• Gender diversity refers to gender-typed behaviors or interest that fit outside of what is considered “normal” for a person’s assigned biological sex.

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Legal Framework

• Right to Privacy under California Constitution

• State and federal laws prohibit the discrimination of students based on their actual or perceived gender

• (Ed. Code§§220, 260; 42 U.S.C. §§2000d-2000e-17; 42 U.S.C. §§2000h-2000h-6; 20 U.S.C. §1681)

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Legal Framework

• “Gender discrimination” not expressly defined in Ed. Code

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Legal Framework

• However, Ed. Code section 230 defines “harassment and other discrimination on the basis of sex” as including, in relevant part– (a) On the basis of sex, exclusion of a person or persons

from participation in, denial of the benefits of, or subjection to harassment or other discrimination in, any academic, extracurricular, research, occupational training, or other program or activity.

– (c) On the basis of sex, exclusion from participation in, or denial or equivalent opportunity in, athletic programs. For purposes of this section, equivalent means equal or equal effect.

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Legal Framework

• Ed. Code section 201(b) further provides that affirmative obligation to combat sexism and other forms of bias, and a responsibility to provide equal educational opportunity to all pupils.

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Legal Framework

• In sum– Duty to prevent and correct discrimination or

harassment of students on the basis of gender, whether at school or at school-sponsored events

– Duty to ensure incidents involving discrimination, harassment, or violence are given immediate attention

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AB 1266: The Student Success and Opportunity Act

• AB 1266 clarifies existing law prohibiting discrimination against students on the basis of sex, gender expression or gender identity.

• AB 1266 cleared the way for educators, caregivers and students to work as a team to identify the best approaches for supporting a transgender student

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AB 1266

• Who decides gender identity?– Is there such thing as “too young” to decide?

– Can a district require documentation?

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A Referendum to Repeal AB 1266

• AB 1266 became law on January 1, 2014• Random valid signature count did not have enough

signatures to qualify outright for the ballot• Every signature now has to be confirmed for validity• Final deadline is February 24, 2014 • If Referendum qualifies, AB 1266 is suspended

pending election results• What should you do if the Referendum qualifies?

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Key Issues

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School Records

• “Colin” starts the new school year as “Colleen.” Her parents demand that the district change her official records to reflect her new sex and name.

• How should the district handle the request?

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School Records

• Keep in mind– District is required to maintain mandatory permanent

record that includes a student’s legal name and legal gender

• So ask, is there a court order changing Colin to Colleen?

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School Records

• If yes, comply with request– Does the district have to change existing records or

just new records?

• If no, district should not change records– However, district should address the student as

“Colleen” and use the correct subject and object pronouns

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Restrooms

• Student (biologically female) has a history of being bullied for his status as a transgender student. School staff is very worried about his safety in the boys’ restroom and offers use of a unisex restroom. Student declines.

• May the District require student to use a unisex bathroom for his safety?

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Restrooms

• No, the district cannot require a student to use a unisex bathroom or a facility that does not conform to his/her gender identity

• What other options does the district have?

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Restrooms

• What if student (who identifies as a male) wants to continue using the girls’ restroom?

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• Meet with parents and student to discuss student’s restroom and locker room use

• Offer unisex bathroom and locker room—allow gender specific facilities if preferred

• If safety is an issue, offer alternative schedule or provide discreet supervision

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Sports Teams

• Student (biologically male) decides to try out for the girls’ basketball team. The coach balks and tells student to try out for the boys’ team. Can the coach do that?

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Sports Teams

• It depends– Does student identify as a boy or a girl?

– How does a student establish his or her “gender identity?”

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Sports Teams

• California Interscholastic Federation (CIF)– Bylaw 300(d), Gender Identity Participation

– Approved February 2013, effective July 2013

• Districts may utilize CIF’s Guidelines for Gender Identity Participation to facilitate process– www.cifstate.org/images/PDF/

State_Constitution_and_Bylaws/guidelines_for_gender_identity_participation.pdf

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Prom Queen?

• Transgender student (biologically male) wants to run for Prom Queen - can he?

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Parent Opposition

• Several parents learn there is a transgender student who will potentially share the restroom with their children. These parents co-author a letter demanding their children be given access to a unisex restroom so as to respect their children’s right to privacy

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Parent Opposition

• What should/must the district do? – Does the school have to make unisex restrooms

available to everyone?

– If that is impractical, does the school have to convert an existing restroom to be unisex?

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Sex-Segregated Facilities

• Ed. Code section 231 states that schools may continue to maintain separate bathroom facilities for biologically male and female students– Nothing herein shall be construed to prohibit any

educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes, as long as comparable facilities are provided

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Sex-Segregated Facilities

• Districts have discretion to accommodate transgender and other students by offering unisex restrooms and locker rooms

• However, districts must avoid policies or practices that discriminate against transgender students or force the students to conform to sex or gender stereotypes

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Student Opposition and Bullying

• Can a student’s or a group of students’ refusal to share facilities with a transgender student constitute bullying or sexual harassment?

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Student Opposition and Bullying

• AB 9 (Seth’s Law) requires that school district’s anti-bullying policies include a requirement that, if school personnel witness an act of discrimination, harassment, intimidation or bullying, they take immediate steps to intervene when safe to do so (Ed. Code§234.1)

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Requests for Information

• A parent who heard about AB 1266 contacts the district to ask if there are any transgender students at her child’s school– Parent is concerned about her child sharing a restroom

and/or changing in a locker room with a transgender student

• What should the district do?

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Requests for Information

• Remember FERPA!– Disclosure could violate FERPA as well as set up the

transgender student as a target for bullying/harassment

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Staff Opposition

• Teacher consistently refuses to use the correct pronoun/name of a transgender student; every time the teacher is corrected, he claims it is a mistake.

• What actions can/must the district take?

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Staff Opposition

• Utilize interactive process with the teacher– Investigate and determine whether it is an honest

mistake

– Remind the teacher of the law

– Progressive discipline if necessary

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• Train staff at faculty meetings• Develop bulletin/memo for staff regarding the

district’s practices• Review district policies and procedures• Engage parents early and often

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Resources

• Gender Spectrum: www.genderspectrum.org• “Provides education, training and support to help

create a gender sensitive and inclusive environment for all children and teens.”

• Gay, Lesbian, & Straight Education Network:• http://glsen.org• Harsh Realities: Experiences of Transgender

Students in our Nation’s Schools • The Transgender Child: A Handbook for Families and

Professionals (By Stephanie Brill and Rachel Pepper)

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And,

• ACSA will be hosting a web chat to provide best practices and answer questions

• Will have a comprehensive link on our web site for resources, sample board policies, information from our members on best practices

• Consideration is being given to provide a video used for staff training

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Continuing the Conversation

• How to Calm the Storm of Confusion– ACSA’s Student Services Conference in Monterey -

Thursday, Jan 16, 2014

– Fagen Friedman & Fulfrost Jan Tomsky and Howard Fulfrost

– Practical guidance for implementation

– Questions and & Answers

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Thank you for attending!

Namita Brown (510) 550-8200

Laura Preston (916) 329-3807

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with

legal counsel to determine how this information may apply to your specific facts and circumstances.

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