BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-2014 Regular Session
BILL NO: AB 1266
AUTHOR: Ammiano
AMENDED: April 25, 2013
FISCAL COMM: No HEARING DATE: June 12, 2013
URGENCY: No CONSULTANT:Lynn Lorber
SUBJECT : Sex-segregated activities and facilities.
SUMMARY
This bill requires a pupil to 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.
BACKGROUND
Discrimination
Current law:
1) Prohibits any person from being subjected to
discrimination on the basis of disability, gender,
nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is
contained in the definition of hate crimes 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
� 220)
2) Defines "hate crime" as a criminal act committed, in
whole or in part, because of one or more of the
following actual or perceived characteristics of the
victim:
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a) Disability.
b) Gender.
c) Nationality.
d) Race or ethnicity.
e) Religion.
f) Sexual orientation.
g) Association with a person or group with one
or more of these actual or perceived
characteristics. (Penal Code � 422.55)
3) Defines "gender" as sex, and includes a person's
gender identity and gender expression. "Gender
expression" is defined as a person's gender-related
appearance and behavior whether or not stereotypically
associated with the person's assigned sex at birth.
(EC � 210.7)
4) Prohibits discrimination on the basis of the
characteristics listed in #1 in any aspect of the
operation of alternative schools or charter schools.
(EC � 235)
5) States that it is the policy of the State that all
people, regardless of their sex, should enjoy freedom
from discrimination of any kind in the educational
institutions of the State. Each educational
institution in the State is required to have a written
policy on sexual harassment.
(EC � 231.5)
On the basis of sex
Current law:
1) Provides that it is the policy of the State that
elementary and secondary school classes and courses,
including non-academic and elective classes and
courses, be conducted without regard to the sex of the
pupil enrolled in these classes and courses. (EC �
221.5)
2) Precludes school districts from prohibiting a pupil
from enrolling in any class or course on the basis of
the sex of the pupil, except sex education courses.
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(EC � 221.5)
3) Prohibits a school district from requiring a pupil of
one sex to enroll in a particular class or course,
unless the same class or course is also required of a
pupil of the opposite sex. (EC � 221.5)
4) Requires participation in a particular physical
education activity or sport to be available to pupils
of each sex if required of pupils of one sex.
(EC � 221.5)
Privacy
Article I, Section I of the California Constitution states:
All people are by nature free and independent and have
inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining
safety, happiness, and privacy.
Three legal challenges have been pursued regarding the
definition of "gender" in the Education Code. The most
recent case, California Education Committee, LLC vs. Jack
O'Connell, was filed in Sacramento Superior Court in 2008.
Plaintiffs argued that current law places "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 students' privacy will be violated because the
school district "will require teachers, administrators, and
school districts to permit children of the opposite sex to
enter locker rooms and restrooms in the future." The
defendant, Jack O'Connell who was the State Superintendent
of Public Instruction at the time, filed a demurrer and
moved to dismiss the case. The Sacramento Superior Court
granted the motion to dismiss the case on June 1, 2009, for
plaintiffs' "failure to state facts sufficient to
constitute a cause of action."
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California Interscholastic Federation (CIF)
CIF bylaw 300 D., approved by CIF's Federated Council on
February 2, 2013, and to take effect in the upcoming school
year (beginning August 1, 2013) is as follows:
Participation in interscholastic athletics is a
valuable part of the educational experience for all
students. 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. Should any
questions arise whether a student's request to
participate in a sex-segregated activity consistent
with his or her gender identity is bona fide, a
student may seek review of his or her eligibility for
participation by working through the procedure set
forth in the "Guidelines for Gender Identity
Participation.
CIF's Guidelines for Gender Identity Participation
establish a process that includes:
1) The pupil and/or parents must contact the school
administrator or athletic director indicating that the
pupil has a consistent gender identity different than
the gender listed on the pupil's school registration
records, and that the student desires to participate
in activities in a manner consistent with his/her
gender identity.
The school may contact CIF for guidance.
If the school declines to allow the pupil to participate in
activities in a manner consistent with his/her gender
identity, at the request of the pupil and/or parent
the school administrator must contact the CIF office,
which will assign a facilitator who will assist the
school and pupil in preparation and completion of the
CIF Gender Identity eligibility appeal process.
The pupil is to be scheduled for an appeal hearing before
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an eligibility committee specifically established to
hear gender identity appeals.
A pupil may appeal the decision of the eligibility
committee to the California Interscholastic Federation
Executive Director.
http://www.cifccs.org/meetings/Documents%20Winter/2012-2013/
gender%20identity%20participation.pdf
ANALYSIS
This bill requires a pupil to 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.
STAFF COMMENTS
1) Need for the bill . According to the author, "Although
current California law already protects students from
discrimination in education based on sex and gender
identity, many school districts do not understand and
are not presently in compliance with their obligations
to treat transgender students the same as all other
students in the specific areas addressed by this bill.
As a result, some school districts are excluding
transgender students from sex-segregated programs,
activities and facilities. Other school districts
struggle to deal with these issues on an ad hoc basis.
Current law is deficient in that it does not provide
specific guidance about how to apply the mandate of
non-discrimination in sex-segregated programs,
activities and facilities."
2) Los Angeles Unified School District (LAUSD) . The
LAUSD adopted policy in 2004 and issued an updated
Reference Guide (REF-1557.1) in September 2011, "to
advise district staff regarding issues relating to
transgender and gender variant students in order to
create and maintain a safe learning environment for
all students and to ensure that every student has
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equal access to the district's education programs and
activities." Components of this guidance include:
a) Students shall have access to the restroom
that corresponds to their gender identity
asserted at school. Where available, a "gender
neutral" restroom may be used by any student who
desires increased privacy, regardless of the
underlying reason. The use of such a restroom
shall be a matter of choice for a student and no
student shall be compelled to use such restroom.
b) Students shall have access to the locker
room facility that corresponds to their gender
identity asserted at school. Schools may provide
a student access to a locker room facility that
corresponds to the gender identity that the
student asserts at school considering the
available accommodation and the needs and privacy
concerns of all students involved.
c) Transgender and gender variant students are
to be provided the same opportunities to
participate in physical education as are all
other students. Participation in competitive
athletic activities and contact sports are to be
addressed on a case-by-case basis.
http://notebook.lausd.net/pls/ptl/docs/PAGE/CA_LAUSD/FL
DR_ORGANIZATIONS/STUDENT_HEALTH_HUMAN_SERVICES/SHHS/HUM
AN_RELATIONS_HOME_PAGE/HUMAN_RELATIONS_BULLETINS_MEMOS/
TRANSGENDER%20%20GENDER%20NONCONFORMING%20STUDENTS-REF-
1557%201%209-9-11.PDF
3) San Francisco Unified School District (SFUSD) . The
SFUSD adopted a regulation (R5163a) to implement the
district's Board Policy 5163 and "advise school site
staff and administration regarding transgender and
gender non-conforming students concerns in order to
create a safe learning environment for all students,
and to ensure that every student has equal access to
all components of their educational program."
Components of this regulation include:
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a) Students shall have the right to be
addressed by a name and pronoun corresponding to
their gender identity that is exclusively and
consistently asserted at school. Students are
not required to obtain a court ordered name
and/or gender change or to change their official
records as a prerequisite.
b) Students shall have access to the restroom
that corresponds to their gender identity
exclusively and consistently asserted at school.
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.
c) Transgender students shall not be forced to
use the locker room corresponding to their gender
assigned at birth. In locker rooms that involve
undressing in front of others, transgender
students who want to use the locker room
corresponding to their gender identity
exclusively and consistently asserted at school
will be provided with the available accommodation
that best meets the needs and privacy concerns of
all students involved.
Transgender students shall not be denied the
opportunity to participate in physical education,
nor shall they be forced to have physical
education outside of the assigned class time.
Generally, students should be permitted to
participate in gender-segregated recreational gym
class activities and sports in accordance with
the student's gender identity that is exclusively
and consistently asserted at school.
Participation in competitive athletic activities
and contact sports will be resolved on a
case-by-case basis.
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http://www.sfusd.edu/en/assets/sfusd-staff/_site-wide/f
iles/Non-Discrimination%20for%20Students%20and%20Employ
ees%20AR%205163a.pdf
4) Implementation of existing policies . The California
Interscholastic Federation (CIF) recently adopted a
bylaw regarding gender identity and participation in
competitive athletics. Reportedly, this bylaw has
been the CIF's unwritten practice for several years,
and CIF receives very few requests for assistance by
school districts.
The LAUSD reports no issues, problems or lawsuits as a
result of the policy; SFUSD has not yet responded to
an inquiry as of the printing of this analysis.
5) Prior legislation . AB 266 (Ammiano, 2012) was nearly
identical to this bill. AB 266 was referred to the
Assembly Education Committee but was never heard.
SUPPORT
American Civil Liberties Union
Anti-Defamation League
California Federation of Teachers
California State PTA
California Teachers Association
Gender Spectrum
National Association of Social Workers, California Chapter
Public Advocates
San Francisco Unified School District
OPPOSITION
California Catholic Conference
California Federation of Republican Women
Capitol Resource Family Impact
Concerned Women for America
Traditional Values Coalition
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