BILL ANALYSIS �
AB 1266
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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