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A Pledge to End Discrimination:

The Implications of A.B. 1266Presented by Namita S. Brown

and Laura PrestonJanuary 14, 2014

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Transgender StudentsNational 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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First, A Word on Nomenclature

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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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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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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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Legal Framework “Gender discrimination” not expressly defined in Ed. Code

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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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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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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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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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AB 1266 Who decides gender identity?

Is there such thing as “too young” to decide?

Can a district require documentation?

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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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Key Issues

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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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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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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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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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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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Restrooms What if student (who identifies as a male)

wants to continue using the girls’ restroom?

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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

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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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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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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_Bylaws/guidelines_for_gender_identity_participation.pdf

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Prom Queen? Transgender student (biologically male)

wants to run for Prom Queen - can he?

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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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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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Sex-Segregated Facilities Ed. Code section 231 states that schools may continue to maintain separate bathroom facilities for biologically male and female studentsNothing 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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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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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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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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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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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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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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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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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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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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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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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

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.40

Thank you for attending!Namita Brown (510) 550-8200

Laura Preston (916) 329-3807