BILL ANALYSIS Ó AB 1266 Page 1 ASSEMBLY THIRD READING 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 AB 1266 Page 2 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. AB 1266 Page 3 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 AB 1266 Page 4 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