1. A Pledge to End Discrimination:
The Implications of A.B. 1266
Presented by Namita S. Brown and Laura Preston
ACSA CEL Institue
February 27, 2014
2. Transgender Students
National Survey Results
• 89.5% report feeling unsafe at school
• 55% report being physically harassed at school because
of their gender expression
• 81% report being sexually harassed at school because of
their gender expression
• 82% report that faculty or staff either never intervened or
only sometimes intervened when they heard other
students make derogatory remarks.
• A significant number reported that the adults actually
made the remarks
• 67% had their property stolen or deliberately damaged at
school
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4. What Does Transgender Mean?
• A transgender person is someone whose sex,
gender, and/or gender expression differs from the
one assigned to them at birth. There are over 100
different transgender identities.
• A child will firmly assert over time that their gender
identity is the opposite of that which was assigned at
birth. “I’m in the wrong body”
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5. Gender Nonconforming
• Generally a child is less adamant about who they are,
but will stubbornly assert what toys they do or don’t
like, clothes they will or will not wear, or activities they
do or don’t prefer irrespective of their assigned
gender.
• Gender diversity refers to gender-typed behaviors or
interest that fit outside of what is considered “normal”
for a person’s assigned biological sex.
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6. Legal Framework
• Right to Privacy under California
Constitution
• State and federal laws prohibit the
discrimination of students based on their
actual or perceived gender
• (Ed. Code§§220, 260; 42 U.S.C.
§§2000d-2000e-17; 42 U.S.C. §§2000h2000h-6; 20 U.S.C. §1681)
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8. Legal Framework
• However, Ed. Code section 230 defines “harassment
and other discrimination on the basis of sex” as
including, in relevant part
– (a) On the basis of sex, exclusion of a person or
persons from participation in, denial of the benefits of,
or subjection to harassment or other discrimination in,
any academic, extracurricular, research, occupational
training, or other program or activity.
– (c) On the basis of sex, exclusion from participation in,
or denial or equivalent opportunity in, athletic
programs. For purposes of this section, equivalent
means equal or equal effect.
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9. Legal Framework
• Ed. Code section 201(b) further provides that
affirmative obligation to combat sexism and other
forms of bias, and a responsibility to provide equal
educational
opportunity to all pupils.
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10. Legal Framework
• In sum
– Duty to prevent and correct discrimination or
harassment of students on the basis of gender,
whether at school or at school-sponsored events
– Duty to ensure incidents involving discrimination,
harassment, or violence are given immediate attention
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11. AB 1266: The Student Success
and Opportunity Act
• AB 1266 clarifies existing law prohibiting
discrimination against students on the basis of sex,
gender expression or gender identity.
• AB 1266 cleared the way for educators, caregivers
and students to work as a team to identify the best
approaches for supporting a transgender student
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12. AB 1266
• Who decides gender identity?
– Is there such thing as “too young” to decide?
– Can a district require documentation?
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13. A Referendum to Repeal AB 1266
• AB 1266 became law on January 1, 2014
• Random valid signature count did not have enough
signatures to qualify outright for the ballot
• Every signature now has to be confirmed for validity
• Final deadline is February 24, 2014
• If Referendum qualifies, AB 1266 is suspended
pending election results
• What should you do if the Referendum qualifies?
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15. School Records
• “Colin” starts the new school year as “Colleen.” Her
parents demand that the district change her official
records to reflect her new sex and name.
• How should the district handle the request?
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16. School Records
• Keep in mind
– District is required to maintain mandatory permanent
record that includes a student’s legal name and legal
gender
• So ask, is there a court order changing Colin to
Colleen?
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17. School Records
• If yes, comply with request
– Does the district have to change existing records or
just new records?
• If no, district should not change records
– However, district should address the student as
“Colleen” and use the correct subject and object
pronouns
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18. Restrooms
• Student (biologically female) has a history of being
bullied for his status as a transgender student.
School staff is very worried about his safety in the
boys’ restroom and offers use of a unisex restroom.
Student declines.
• May the District require student to use a unisex
bathroom for his safety?
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19. Restrooms
• No, the district cannot require a student to use a
unisex bathroom or a facility that does not conform to
his/her gender identity
• What other options does the district have?
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20. Restrooms
• What if student (who identifies as a male) wants to
continue using the girls’ restroom?
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21. • Meet with parents and student to discuss student’s
restroom and locker room use
• Offer unisex bathroom and locker room—allow
gender specific facilities if preferred
• If safety is an issue, offer alternative schedule or
provide discreet supervision
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22. Sports Teams
• Student (biologically male) decides to try out for the
girls’ basketball team. The coach balks and tells
student to try out for the boys’ team. Can the coach
do that?
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23. Sports Teams
• It depends
– Does student identify as a boy or a girl?
– How does a student establish his or her “gender
identity?”
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24. Sports Teams
• California Interscholastic Federation (CIF)
– Bylaw 300(d), Gender Identity Participation
– Approved February 2013, effective July 2013
• Districts may utilize CIF’s Guidelines for Gender
Identity Participation to facilitate process
– www.cifstate.org/images/PDF/State_Constitution_and_B
ylaws/guidelines_for_gender_identity_participation.pdf
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26. Parent Opposition
• Several parents learn there is a transgender student
who will potentially share the restroom with their
children. These parents co-author a letter
demanding their children be given access to a unisex
restroom so as to respect their children’s right to
privacy
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27. Parent Opposition
• What should/must the district do?
– Does the school have to make unisex restrooms
available to everyone?
– If that is impractical, does the school have to convert
an existing restroom to be unisex?
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28. Sex-Segregated Facilities
• Ed. Code section 231 states that schools may
continue to maintain separate bathroom facilities for
biologically male and female students
– Nothing herein shall be construed to prohibit any
educational institution from maintaining separate toilet
facilities, locker rooms, or living facilities for the
different sexes, as long as comparable facilities are
provided
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29. Sex-Segregated Facilities
• Districts have discretion to accommodate
transgender and other students by offering unisex
restrooms and locker rooms
• However, districts must avoid policies or practices
that discriminate against transgender students or
force the students to conform to sex or gender
stereotypes
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30. Student Opposition and Bullying
• Can a student’s or a group of students’ refusal to
share facilities with a transgender student constitute
bullying or sexual harassment?
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31. Student Opposition and Bullying
• AB 9 (Seth’s Law) requires that
school district’s anti-bullying
policies include a requirement
that, if school personnel
witness an act of
discrimination, harassment,
intimidation or bullying, they
take immediate steps to
intervene when safe to do so
(Ed. Code§234.1)
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32. Requests for Information
• A parent who heard about AB 1266 contacts the
district to ask if there are any transgender students at
her child’s school
– Parent is concerned about her child sharing a restroom
and/or changing in a locker room with a transgender
student
• What should the district do?
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33. Requests for Information
• Remember FERPA!
– Disclosure could violate FERPA as well as set up the
transgender student as a target for
bullying/harassment
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34. Staff Opposition
• Teacher consistently refuses to use the correct
pronoun/name of a transgender student; every time
the teacher is corrected, he claims it is a mistake.
• What actions can/must the district take?
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35. Staff Opposition
• Utilize interactive process with the teacher
– Investigate and determine whether it is an honest
mistake
– Remind the teacher of the law
– Progressive discipline if necessary
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36. • Train staff at faculty meetings
• Develop bulletin/memo for staff regarding the
district’s practices
• Review district policies and procedures
• Engage parents early and often
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37. Resources
• Gender Spectrum: www.genderspectrum.org
• “Provides education, training and support to help
create a gender sensitive and inclusive environment
for all children and teens.”
• Gay, Lesbian, & Straight Education Network:
• http://glsen.org
• Harsh Realities: Experiences of Transgender
Students in our Nation’s Schools
• The Transgender Child: A Handbook for Families and
Professionals (By Stephanie Brill and Rachel Pepper)
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38. And,
•
•
•
ACSA will be hosting a web chat to provide best
practices and answer questions
Will have a comprehensive link on our web site for
resources, sample board policies, information from
our members on best practices
Consideration is being given to provide a video used
for staff training
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39. Continuing the Conversation
• How to Calm the Storm of Confusion
– ACSA’s Student Services Conference in Monterey Thursday, Jan 16, 2014
– Fagen Friedman & Fulfrost Jan Tomsky and Howard
Fulfrost
– Practical guidance for implementation
– Questions and & Answers
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40. Thank you for attending!
Namita Brown (510) 550-8200
Laura Preston (916) 329-3807
Information in this presentat ion, including but not lim ited to PowerPoint handouts and the presenters'
comm ents, is summ ary only and not legal advice. We advise you to consult with legal counsel to
determ ine how this information m ay apply to your specific facts and circums tanc es .
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