Partner Jack Sleeth’s Case Study on AB1266 and Trans-gender Student Rights
Issue: Are Trans-gender Students Permitted to Use Restroom and Locker Room?
Summary: California has adopted a law that requires school districts to permit students to participate in all sex-segregated activities consistent with that student’s gender identity. In summary, school districts will be required to permit each student to participate in sports and use restrooms and locker rooms consistent with the student’s gender identity. The new law does not strengthen previous anti-discrimination laws, but creates a new state mandate permitting a student to participate in sports, and to use restroom and locker room facilities of the opposite sex, consistent with that student’s gender identity. The new law goes into effect on January 1, 2014.
While the law is somewhat controversial, some schoool districts in California have already had experience with a similar provision that will permit a student to participate in a sport previously identified with a particular gender, based upon that student’s gender identity.
Background: In August, Governor Brown signed into law Assembly Bill 1266 to amend section 221.5 of the Education Code. That section already prohibits public schools from limiting participation in classes and programs based on the sex of the pupil. The amendment adds a single sentence to the prior statute to permit students to participate in all programs:
(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.
(Ed. Code 22.15, subd. (f).)
Education Code section 220 currently prohibits discrimination 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. The new legislation did not specifically amend Education Code section 231, which states: “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.” Separate facilities may continue to be maintained, but a student will be permitted to use the facility corresponding to his or her gender identity. Consequently, with this new amendment, transgender students were previously protected against discrimination at school, but now schools are affirmatively required to permit a student to use all sex-segregated facilities and participate in all sex-segregated activities according to that student’s gender identity.
School districts should consider the following recommendations before January 1:
- Create a policy and a regulation to allow a student access to all facilities consistent with that student’s exclusive and consistent gender identity.
- Develop procedures to establish gender identity, requiring the student to select one exclusive and consistent gender identity.
- Determine for each student the identity the student wishes communicated to testing facilities, sent to colleges, or placed on the diploma. Maintain the degree of privacy desired by the student.
- Create a form to be signed by the parent or guardian to confirm the student’s gender identity, and to change student records to show gender identity, preferred name and pronoun, i.e., Samuel (preferred Samantha) Smith.
- Train staff and students to understand the policy.
- Review Title 5 discrimination reporting and investigation regulations
- Take steps to protect the privacy of all students, such as:
- Designate unisex restrooms;
- In the locker room, provide available accommodation that best meets the needs and privacy concerns of all students involved. Depending upon availability and appropriateness, accommodations could include, but are not limited to:
- In private areas in the public area, like a bathroom stall with a door, an area separated by a portable dressing screen or curtain, a PE teacher’s office, a separate changing schedule, use of a nearby private area like a nurse’s office;
- Ensure that no student is required to use the unisex restroom or to dress behind a partition or dressing screen, but make the options available as desired by each student.