BILL ANALYSIS Ó
AB 1266
Page 1
ASSEMBLY THIRD READING
AB 1266 (Ammiano)
As Amended April 25, 2013
Majority vote
EDUCATION 5-2
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|Ayes:|Buchanan, Gomez, | | |
| |Nazarian, Ammiano, | | |
| |Williams | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Olsen, Chávez | | |
| | | | |
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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
FN: 0000317