Public Entity Client Advisory: Protecting Transgender Students In Our Schools

I.    Introduction

Late last year, Governor Brown signed the School Success and Opportunity Act (A.B. 1266) with the enthusiastic support of the LGBT community, among many others. For some, this groundbreaking legislation is an historic step towards ensuring the safety, legitimacy and respect of transgender and gender nonconforming students. For others, it is not only an unconstitutional intrusion of the state into religion and parenting, but also will compromise the safety and privacy of other students. The law has already faced a failed attempt to challenge it on the ballot. A.B. 1266 became law on January 1, 2014 and many districts have already adopted policies and procedures to implement the law.

The hoopla about the law has begun to subside as the realization of the work ahead has come into focus. Achieving the goals of A.B. 1266 will not be easy and satisfying its mandates will require vigilance and the adherence to well-crafted policies that are skillfully executed. Thankfully, many school districts are up for the challenge because of the lessons learned during the struggles for equality that began with the civil rights movement. While real change comes with time, sacrifice and commitment, school districts must act now to implement policies to achieve the goals of A.B. 1266 regardless of ideological disagreements.

II.    State and Federal Law

A.B. 1266 added the following language to Education Code §221.5:

(f) a pupil shall 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.

On its face the change to the code does not appear complicated. However, it created significant confusion in our public schools. This may be in part due to existing state and federal laws prohibiting discrimination based on gender, sexual orientation, and even gender identity. The California Fair Employment and Housing Act prohibits employment discrimination based on sexual orientation, and is arguably the most inclusive antidiscrimination law in the country. (California Government Code §12900 et seq.). The Unruh Civil Rights Act also prohibits gender identity discrimination. (California Civil Code section 51 (B)). California Education Code sections 32261, 32262, 32265, 32270, 32282, and 32283 give school administrators broad discretion to combat bullying based on protected classification. California Penal Code sections 422.55 and 422.56 classify crimes motivated by gender orientation as hate crimes. This is not to mention federal prohibitions such as 42 U.S.C. §1983, Title VII of the Civil Rights Act of 1964 and Title IX of the education amendments of 1972.

A.B. 1266 provides an additional dimension to the antidiscrimination laws already on the books. For instance, Education Code section 220 et seq. prohibits discrimination in schools based on gender, gender identity, and gender expression among other protected classifications. A.B. 1266 augments these antidiscrimination laws by creating a new mandate that expressly allows students to use restroom and locker room facilities consistent with their gender identity. Confusion may be exacerbated by a long-standing statute (Education Code 231) that allows separate gender-based bathroom and locker room facilities so long as they comparable. Are these overlapping laws and an arcane bathroom statute the reason for all the confusion and opposition? Or is it something more?

III.    Demystifying the Problems

A.B. 1266 undoubtedly presented a new set of practical quandaries for our school leaders. Do we have to create new bathrooms? How do we provide private bathrooms? How do we monitor bathroom usage? Must we create transgender locker rooms? How do we protect student privacy in an open locker room? Are opposite sex students allowed to share locker room facilities? How do we refer to the students? What pronouns do we use? What name should go on the report card? What name should go on the mail home? How do we talk to the students’ parents? How do we address this issue with other parents? How do we enforce the dress code? How do we protect a student’s safety when they are vocal about their gender identity or transition? How can we monitor all of the bathrooms and locker rooms? How do we enforce bullying with our limited resources? These are but a few of the questions schools will ask and foreshadow the challenges yet to come.

Many have pointed to the inevitable problems that will arise with the implementation of the law. These concerns are understandable, yet the problems are not insurmountable. The concerns are understandable because these issues strike cords deep within us. Whether political or religious, the mandate will affect us all in some way now or in the future. Some understand the purpose of the law but some never will; school districts need to put these controversies aside because the stakes can be exceedingly high. A well-intentioned or inadvertent disclosure may have deadly consequences. We have already heard stories about violence against transgender and gender nonconforming students. Matthew Shepherd was tortured and murdered just for being who he was. Although these issues may appear novel, they are not altogether different from issues faced in the past. Educators have always been on the cutting-edge of social issues and have confronted debates about evolution, segregation, busing, heterogeneity, gender equality, diversity, and bilingual education. We can confront this. This is when the profession becomes a calling.

IV.    Possible Strategies

Things that school districts have done in the past can be successful in the future. The following are some practical guidelines to deal with the A.B. 1266 mandate. Some may sound familiar:

  • Board Policies and Administrative Regulations – It is critical the district boards publicly discuss and adopt policies and procedures to address this mandate. Public discussion will inform the community about the law and its purpose. Procedural clarity will help administrators, teachers and classified staff navigate this new terrain. Los Angeles Unified School District and San Francisco Unified School District have had such policies for years.
  • FERPA and HIPPA – Strict adherence to these familiar laws will help protect the privacy for transgender and gender nonconforming students. It is well understood that releasing student records and medically documented information violates state and federal student privacy laws. Transgender and gender nonconforming students are no different.
  • Student Records – Schools are required to maintain a mandatory permanent pupil record which includes the legal name of the pupil as well as the pupil’s gender. [5 CCR 432 (b) (1) (A), (A)]. However schools have considerable latitude in daily school operations. Consider using the “preferred name” on attendance sheets, report cards, diplomas and parental communications to avoid inadvertent disclosure.
  • Uniform Complaint Procedures – When addressing an A.B. 1266 issue, be it bathrooms, locker rooms or alleged discrimination, strict adherence to uniform complaint procedures is required. Follow your district’s board policies and administrative regulations. Thoroughly and immediately investigate each issue on a case-by-case basis. Take prompt and neutral remedial action.
  • Restroom/Locker Room Accessibility – All students must have access to a restroom and/or locker room that corresponds with their gender identity. Any student who needs or desires increased privacy should be provided access to a reasonable alternative. Educators have always done this for shy and/or ill children. This is simply a matter of sensitivity and respect.
  • Restroom/Locker Room Monitoring – Schools have always been required to monitor restrooms and locker rooms. Certificated and classified staff should remain mindful that these are areas where transgender and gender nonconforming students are particularly susceptible to bullying.
  • Dress Codes – School dress codes generally identify appropriate clothing, provide financial alternatives and opt-out provisions. This should be no different with transgender or gender nonconforming students who wish to dress consistent with their gender identity or gender expression.
  • First Amendment – Students may want to openly express their “otherness.” No student’s freedom to speak freely can be denied solely on the content of the speech. As always, student safety is the ultimate concern.

These are maxims that are utilized in public schools on a daily basis. These strategies have led schools through stressful and uncomfortable situations because they work, and they will work here too.

V.    “A Child Shall Lead Them”

In order to successfully confront these challenges we must enlist our most valuable resources: our children. It is critical to teach gender tolerance at an early age. Not only can gender transmission occur at any age, but also young people are far more emotionally and intellectually adaptable. Children are less likely to see color, nationality or sexual orientation than adults. The adults should take a cue from the children.

Like it or not, the passage of A.B. 1266 means schools now have a greater role in these discussions. Each district will have to address how and when to engage students in discussions about gender differences and gender expectations. School districts must also accept differing points of view and not restrict free speech. Through hard work and the education, schools can incrementally reject gender norms in the classroom and foster an understanding of gender diversity among all students. School districts need to take a fresh look at their policies with an eye towards A.B. 1266 compliance. Because of the strong feelings surrounding A.B. 1266, school districts must be more transparent than ever when it comes to policy and curricula changes under consideration.


This document is intended to provide you with information about public entity/school district related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.

March 12, 2014