BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  AB 1266
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          AB 1266 (Ammiano)
          As Amended  April 25, 2013
          Majority vote 

           EDUCATION           5-2                                         
          |Ayes:|Buchanan, Gomez,          |     |                          |
          |     |Nazarian, Ammiano,        |     |                          |
          |     |Williams                  |     |                          |
          |     |                          |     |                          |
          |Nays:|Olsen, Chávez             |     |                          |
          |     |                          |     |                          |
           SUMMARY  :  Specifies that 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.

           FISCAL EFFECT  :  None.  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  
          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 (Kuehl), 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  


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          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  
          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."  

          Several school districts, including San Francisco Unified School  
          District and Los Angeles Unified School District, citing  
          existing law, already have policies prohibiting discrimination  
          against transgender youth and allow youth to participate in  
          activities and use facilities associated with his or her gender.  


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          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."  

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

          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  


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          to graduate on time while others drop out of school.  

          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."  

          The California Catholic Conference states, "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 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."  

          Analysis Prepared by  :    Sophia Kwong Kim / ED. / (916) 319-2087  

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