Looking for guidance on this new law which affects access and inclusion for transgender students? In this webinar, expert attorney Namita Brown, of Fagen Friedman & Fulfrost and ACSA legislative advocate, Laura Preston, will explain how you can successfully implement AB 1266 including resources available to assist you. Pointers will be given on how to help your board and staff communicate on this sometimes difficult topic. An update on the referendum circulated to repeal AB 1266 will be provided. All district and site administrators should log on for practical, up-to-the minute information on the legislation.

1. A Pledge to End Discrimination:
The Implications of A.B. 1266
Presented by Namita S. Brown
and Laura Preston
January 14, 2014
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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%
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had their property stolen or deliberately damaged at school
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3. First, A Word on Nomenclature
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4. What Does Transgender Mean?


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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


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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.
§§2000h-2000h-6; 20 U.S.C.
§1681)
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7. Legal Framework

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“Gender discrimination” not expressly defined in
Ed. Code

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

9
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.

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


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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

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If Referendum qualifies, AB 1266 is suspended
pending election results
What should you do if the Referendum qualifies?
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14. Key Issues
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15. School Records


15
“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?

16. School Records

Keep in mind
District is required to maintain mandatory
permanent record that includes a student’s
legal name and legal gender

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So ask, is there a court order changing Colin to
Colleen?

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


18
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?

19. Restrooms


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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?

20. Restrooms

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What if student (who identifies as a male) wants
to continue using the girls’ restroom?

21. 


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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

22. Sports Teams

22
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?

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_Constituti
on_and_Bylaws/guidelines_for_gender_identity
_participation.pdf
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25. Prom Queen?

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Transgender student (biologically male) wants to
run for Prom Queen - can he?

26. Parent Opposition

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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

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


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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

30. Student Opposition and Bullying

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Can a student’s or a group of students’ refusal to
share facilities with a transgender student
constitute bullying or sexual harassment?

31. Student Opposition and Bullying

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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)

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

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What should the district do?

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


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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?

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

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The Transgender Child: A Handbook for Families and
Professionals (By Stephanie Brill and Rachel Pepper)
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38. And,
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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
Presented by Jan Tomsky and Howard Fulfrost
(attorneys, Fagen Friedman & Fulfrost)
Practical guidance for implementation
Questions & Answers
39

40. Thank you for attending!
Namita Brown (510) 550-8200
Laura Preston (916) 329-3807
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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is
summary only and not legal advice. We advise you to consult with legal counsel to determine how this information
may apply to your specific facts and circumstances .