BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:   April 17, 2013

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Joan Buchanan, Chair
                AB 1266 (Ammiano) - As Introduced:  February 22, 2013
           
          SUBJECT  :   Pupil rights:  sex-segregated school programs

           SUMMARY  :   Specifies that a pupil shall be permitted to  
          participate in sex-segregated school programs, activities, and  
          facilities, including athletic teams and competitions,  
          consistent with this or her gender identity, irrespective of the  
          gender listed on the pupil's records.

           EXISTING LAW  :

          1)Prohibits discrimination on the basis of disability, gender,  
            nationality, race or ethnicity, religion, sexual orientation  
            or any other characteristic included in the definition of hate  
            crime, as defined in the Penal Code, in any program or  
            activity conducted by an educational institution that receives  
            or benefits from, state financial assistance or enrolls pupils  
            who receive state student financial aid.  (Education Code (EC)  
            Section 220)

          2)Defines "gender" as "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." (EC 210.7)

          3)Requires that participation in a particular physical education  
            activity or sport, if required of pupils of one sex, be  
            available to pupils of each sex. (EC 221.5)  

          4)Provides that an educational institution is not prohibited  
            from maintaining separate toilet facilities, locker rooms, or  
            living facilities for the different sexes so long as  
            comparable facilities are provided.  (EC 231)

           FISCAL EFFECT  :  This bill is keyed non-fiscal by the Legislative  
          Counsel.

           COMMENTS : Current law prohibits discrimination based on several  
          characteristics, including, sex, sexual orientation, and gender  
          identity.  Current law protects from harassment and  








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          discrimination any pupil whose identity, appearance or behavior  
          is different than the stereotypical characteristic of that  
          pupil's assigned sex at birth.  This bill requires a pupil be  
          permitted to participate in sex-segregated school programs,  
          activities, and facilities including athletic teams and  
          competitions, consistent with his or her gender identity,  
          regardless of the gender listed on the pupil's records.  

           Attempted court challenges to California's antidiscrimination  
          statutes  have been unsuccessful. Plaintiffs in the California  
          Education Committee, LLC, et al. v. Jack O'Connell court case  
          sought to challenge the definition of "gender" in the  
          nondiscrimination provisions of the Education Code as amended  
          through SB 777, Chapter 569, Statutes of 2007, and argued that  
          SB 777 placed "educators in the impossible position of (1)  
          reading the minds of individuals to determine the individual's  
          self-defined sexual identity so as not to inadvertently  
          discriminate against an individual based upon their self-defined  
          sex and (2) protecting the privacy and safety of all students  
          from persons of the opposite sex."  Additionally, plaintiffs  
          argued that a particular student's privacy will be invaded  
          because the school district "will allow transgender students to  
          use whatever facility they identify with."  The State  
          Superintendent of Public Instruction (SPI) filed a demurrer and  
          moved to dismiss the case.  The Sacramento Superior Court  
          granted the motion to dismiss the case for plaintiffs' failure  
          "to state facts sufficient to constitute a cause of action."  

          In an Amici Curiae submitted in support of the Demurrer filed by  
          then SPI, Jack O'Connell, the National Center for Lesbian  
          Rights, Equality California, and Gay-Straight Alliance argue  
          that "subjective discomfort in the presence of transgender  
          individuals does not create a protected privacy interest" and  
          point out that "claims of discomfort in the presence of a  
          minority group propped up decades of racial segregation in  
          housing, education, and access to public facilities like  
          restrooms and drinking fountains."  Furthermore, the Amici  
          Curiae notes that in a discrimination case brought by a  
          transgender student, a Massachusetts court held that school  
          officials discriminated based on gender when they applied the  
          school's dress code to forbid the plaintiff, who had a female  
          gender identity, from wearing girls' clothes.  The court wrote  
          that it could not allow the stifling of plaintiff's selfhood  
          merely because it causes some members of the community  
          discomfort and concluded that the school could not place  








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          restrictions on transgender students that were not placed on  
          other female students.  Lastly, the Amici argues that "a  
          non-discriminatory policy permitting transgender students to use  
          facilities that correspond to their consistently expressed  
          gender identity would have little or no effect on the privacy  
          interests of other students because schools can easily provide  
          reasonable accommodations to balance the privacy interests of  
          all students."  

           Research relative to transgender students in sports  .  Gender  
          segregation in sports has in part been based on a concern about  
          unfair physical advantages.  Typically those arguments have  
          centered around creating an "unfair competitive advantage" and  
          is most often suggested in discussions about transgender women  
          or girls competing on a women's or girls' team.  A national  
          think tank co-sponsored by the National Center for Lesbian  
          Rights and the Women's Sports Foundation issued a report to  
          provide guidance to high school and college athletic programs  
          about providing transgender student athletes with equal  
          opportunities to participate in school-based sports programs.  

          The report titled, On the Team: Equal Opportunity for  
          Transgender Students, points out that the aforementioned  
          concerns "are based on three assumptions: one, that transgender  
          girls and women are not 'real' girls or women and therefore not  
          deserving of an equal competitive opportunity; two, that being  
          born with a male body automatically gives a transgender girl or  
          woman an unfair advantage when competing against non-transgender  
          girls and women; and three, that boys or men might be tempted to  
          pretend to be transgender in order to compete in competition  
          with girls or women."  The report argues that these assumptions  
          are not well founded, and asserts that "the decision to  
          transition from one gender to the other-to align one's external  
          gender presentation with one's internal sense of gender  
          identity-is a deeply significant and difficult choice that is  
          made only after careful consideration and for the most  
          compelling of reasons."  The report further points out that the  
          fear that transgender women will have an unfair advantage over  
          non-transgender women, is based on the belief that transgender  
          girls or women who have gone through male puberty may have an  
          unfair advantage due to the growth in long bones, muscle mass,  
          and strength that is triggered by testosterone, however the  
          report notes that a growing number of transgender youth are  
          undergoing medically guided hormonal treatment prior to puberty,  
          thus transgender girls who transition in this way do not go  








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          through a male puberty, and therefore it is argued that their  
          participation in athletics as girls does not raise the same  
          equity concerns.  It is further asserted in the report that even  
          transgender girls who do not access hormone blockers or  
          cross-gender hormones display a great deal of physical  
          variation, and to assume that all male-bodied people are taller,  
          stronger, and more highly skilled in a sport than all  
          female-bodied people is not accurate.  Lastly, the report notes  
          that fears that boys or men will pretend to be female to compete  
          on a girls' or women's team are unwarranted given that in the  
          entire 40 year history of "sex verification" procedures in  
          international sport competitions, no instances of such "fraud"  
          have been revealed.  This report recommends that high schools  
          permit transgender athletes to play on teams consistent with the  
          student's gender identity, without regard to whether the student  
          has undertaken any medical treatment.

          In 2012, the California Interscholastic Federation (CIF), the  
          body that governs interscholastic athletics, adopted the  
          following policy:  "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."  

          Some school districts have adopted policies and protocols that  
          allow transgender students to participate in physical education,  
          as all other students.  However, as it relates to competitive  
          sports, some districts have policies and protocols that allow  
          for situations to be handled on a case-by-case basis.  This bill  
          would take away this type of discretion from local school  
          districts and create a uniform policy for participation in  
          sports.

          The author states, "Athletics and physical education classes,  
          which are often segregated by sex, provide numerous  
          well-documented positive effects for a student's physical,  
          social, and emotional development. Playing sports can provide  
          student athletes with important lessons about self-discipline,  
          teamwork, success, and failure, as well as the joy and shared  
          excitement that being a member of a sports team can bring. When  
          transgender students are denied the opportunity to participate  
          in physical education classes in a manner consistent with their  
          gender identity, they miss out on these important benefits and  
          suffer from stigmatization and isolation. In addition, in many  
          cases, students who are transgender are unable to get the  








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          credits they need to graduate on time when, for example, they do  
          not have a place to get ready for gym class." 

           Restroom and locker room accessibility  .  In light of the  
          existing non-discrimination statutes, some school districts  
          already have policies that address restroom accessibility for  
          transgender students.  For example, the San Francisco Unified  
          School District authorizes students to have access to the  
          restroom that corresponds to their gender identity exclusively  
          and consistently asserted at school, and states that "where  
          available, a single stall bathroom may be used by any student  
          who desires increased privacy, regardless of the underlying  
          reason.  The use of such a single stall bathroom shall be a  
          matter of choice for a student, and no student shall be  
          compelled to use such bathroom."  

          The Los Angeles Unified School District issued a Reference Guide  
          in 2011 relating to transgender and non-conforming students and  
          states that schools may maintain separate restroom facilities  
          for male and female students however, a student may be provided  
          access to a restroom facility that corresponds to the gender  
          identity that the student asserts at school.  Additionally, the  
          Reference Guide notes that if there is a reason or desire for  
          increased privacy and safety, regardless of the underlying  
          purpose or cause, any student may be provided access to a  
          reasonable alternative restroom such as a single stall "gender  
          neutral" restroom or the health office restroom.  

          Both districts have similar policies or protocols relative to  
          locker room accessibility which is to allow transgender students  
          to use the locker room corresponding to their gender identity  
          asserted at school, considering available accommodation and the  
          needs and privacy concerns of all students involved, and if  
          there is a reason or request for increased privacy and safety  
          regardless of the underlying reason, students may be provided  
          access to an alternative locker room such as a private area such  
          as a nearby restroom stall with a door or an area separated by a  
          curtain or a separate changing schedule and ensuring that the  
          student's gender identity remains confidential.  

          A question has been raised as to whether this bill would  
          prohibit districts from continuing to provide such alternatives.  
           In some situations there may be a desire on the part of a  
          pupil, to use a gender neutral facility for additional privacy  
          or for other reasons, particularly when perhaps the pupil has  








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          recently come out and prefers a gender neutral facility for the  
          short term.  The author's intent, according to the author's  
          staff, is to establish a policy whereby a transgender student is  
          not restricted from accessing a facility corresponding to his or  
          her gender identity, but at the same time still provides the  
          ability for alternative accommodations, upon a pupil's request  
          provided that the alternative is an option and not a requirement  
          that is inconsistent with the pupil's rights and desires.  The  
          author does not believe the bill inhibits a school from offering  
          alternatives under current law.  

           Other states  .  According to the Transgender Law Center, several  
          states have published guidelines to ensure compliance with  
          antidiscrimination laws.  The Massachusetts Department of  
          Elementary and Secondary Education issued the following:

          "In all cases, the principal should be clear with the student  
          (and parent) that the student may access the restroom, locker  
          room, and changing facility that corresponds to the student's  
          gender identity."  

          The guidance encourages administrators to work with students and  
          parents to address the needs of each student with regard to  
          facility access, but cautions that another student's discomfort  
          sharing a facility with a transgender student "is not a reason  
          to deny access to the transgender student."

          Washington's Superintendent of Public Instruction released the  
          following guideline:

          School districts should allow students to use the restroom that  
          is consistent with their gender identity consistently asserted  
          at school. Any student - transgender or not - who has a need or  
          desire for increased privacy, regardless of the underlying  
          reason, should be provided access to an alternative restroom  
          (e.g., staff restroom, health office restroom). This allows  
          students who may feel uncomfortable sharing the facility with  
          the transgender student(s) the option to make use of a separate  
          restroom and have their concerns addressed without stigmatizing  
          any individual student. No student, however, should be required  
          to use an alternative restroom because they are transgender or  
          gender nonconforming.

          The Connecticut Human Rights Commission issued the following:









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          Students should have access to the restroom that corresponds to  
          their gender identity asserted at school. Schools may maintain  
          separate restroom facilities for male and female students  
          provided that they allow students to access them based on their  
          gender identity and not exclusively based on student's assigned  
          birth sex?. Under no circumstances may a student be required to  
          use a restroom facility that is inconsistent with that student's  
          asserted gender identity.  
           
           Harm to the pupil  .  Pupils who have been denied access to  
          facilities corresponding to their gender identities can suffer  
          physical and academic harm.  For example, an eight-year-old  
          transgender girl in a suburban school district who was told to  
          use a nurse's restroom would intentionally avoid drinking and  
          eating certain food to avoid having to use the restroom, rather  
          than face questions from her classmates as to why she would not  
          use a girl's restroom.  A transgender boy attending a middle  
          school in the Bay Area was told he had to use the nurse's  
          restroom and was prohibited from entering a boy's restroom.  The  
          pupil felt more comfortable using the boy's restroom and  
          subsequently received detention.  The boy was also threated with  
          suspension from school for defying school authorities.  

          The 2009 national school climate survey indicates that lesbian,  
          gay, bisexual, and transgender (LGBT) youths feel unsafe at  
          school, and are more than three times as likely as other  
          students to have missed class or an entire day of school because  
          of feeling unsafe or uncomfortable.  Situations such as these  
          prevent transgender students from getting the credits they need  
          to graduate on time while others drop out of school.  

           Arguments in support  .  The author states, "All students should  
          have a fair opportunity to participate in school programs,  
          activities and facilities.  Yet transgender young people often  
          must overcome significant stigma and challenges.  This bill  
          would ensure that all pupils, including those who are  
          transgender, have equal access to all educational opportunities  
          and have the chance to fully participate and succeed in school  
          and graduate on time with their classmates."  

           Arguments in opposition  .  "As the governor has recently reminded  
          us, subsidiarity - allowing decisions to be made at the level  
          closest to the problem - makes sense in addressing real needs.   
          A few of our students may be struggling with or confused about  
          their gender identity or expression, but individual responses  








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          handled confidentially while protecting the dignity of the  
          student, involving the parents, honoring the privacy rights of  
          others, and maintaining the good order of the school would be  
          far more preferable.  We suggest that one more state law  
          imposing a "one size fits all" politically correct agenda is not  
          a good public policy.  Solidarity with those who may be the  
          object of discrimination is appropriate and should be shared by  
          all, but we ought to balance that with common sense and trust in  
          the leadership of the local school level."  

           Technical amendment  .  As currently drafted, this bill requires a  
          pupil be permitted to "participate in sex-segregated school  
          programs, activities and facilities . . ."  The language should  
          be worded to permit pupils to use, instead of participate in  
          facilities.  Staff recommends a technical amendment to add  
          "use".  
           
          Previous legislation  .  AB 266 (Ammiano), is an identical bill  
          that was held by the author in this Committee last year.  

           REGISTERED SUPPORT / OPPOSITION :   

           Support 
           
          Equality California (co-sponsor)
          Gay-Straight Alliance Network (co-sponsor)
          Transgender Law Center (co-sponsor)
          American Civil Liberties Union
          Bay Area Youth Summit
          California Communities United Institute
          California Lesbian, Gay, Bisexual, and Transgender Health &  
          Human Services Network
          California Teachers Association
          Child and Adolescent Gender Center
          Family Equality Council
          Gay and Lesbian Community Services Center of Orange County
          Gay, Lesbian & Straight Education Network
          Gay, Lesbian & Straight Education Network, Orange County
          Labor/Community Strategy Center
          L.A. Gay & Lesbian Center
          LGBT Community Center of the Desert
          Los Angeles Gender Center
          Los Angeles Unified School District
          Mexican American Legal Defense and Educational Fund
          National Center for Lesbian Rights








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          National Gay and Lesbian Task Force
          North County LGBTQ Resource Center
          Our Family Coalition
          Pacific Pride Foundation
          Public Counsel
          Restorative Schools Vision Project
          San Diego Cooperative Charter School
          San Diego LGBT Community Center
          Spectrum LGBT Center in San Rafael
          Trevor Project
          Youth Justice Coalition
          One individual

           Opposition 
           
          California Catholic Conference
          Capitol Resource Institute
          Traditional Values Coalition
           
          Analysis Prepared by  :    Sophia Kwong Kim / ED. / (916) 319-2087