AB 1266 — The Latest Lightning Rod

Nothing illustrates how public schools have become lightning rods for social issues like Assembly Bill (“AB”) 1266, which amended Education Code section 221.5 as of January 1, 2014.

According to the Legislative Digest, AB 1266 “would require that a pupil 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.”

The law, approved by Governor Brown on August 12, 2013, ignited strongly worded commentaries from various organizations opposing the new law and those defending it.  Needless to say, this has become a polarizing, high-profile issue between “conservative” and “progressive” elements of our state and local communities, even though AB 1266 is only the most recent development in a series of laws enacted over the last several years supportive of non-traditional lifestyles and gender identification.  For example, AB 537, approved by Governor Davis in 1999, is a broadly stated prohibition against any form of discrimination in “public school and postsecondary institutions” based on, among other things, one’s sex.  In 2006, Governor Schwarzenegger approved Senate Bill (“SB”) 1441 which bans discrimination on the basis of “sexual orientation,” and applies to “. . . any program or activity conducted, operated, or administered by the state or by any state agency, or that is funded directly by the state, or that receives any financial assistance from the state.”  In 2007, SB 777 also approved by Governor Schwarzenegger, prohibits all public school instruction and every school activity from “promoting a discriminatory bias” against trans-sexuality, bisexuality and homosexuality in Kindergarten-12th grade programs.

Many school districts had not fully apprehended the potential ramifications of AB 1266 and, since its approval, have been uncertain how to comply with the new law while at the same time maintaining the privacy rights of all students.  This is understandable, as little, if any, practical guidance has been provided by the California Department of Education or the State Superintendent of Schools.

Nevertheless, organizations such as the California School Boards Association (“CSBA”) and the California Interscholastic Federation (“CIF”) issued documents in the weeks following the new law’s approval that provide school districts some preliminary assistance.  On September 27, 2013, the CSBA issued its “Interim Guidance Regarding Transgender Students, Privacy and Facilities,” which sets out a helpful framework for school districts but lacks specific protocols and procedures school districts can use to effectively administer the new law on a “nuts and bolts” level.

On February 2, 2013, the CIF’s Federated Council approved Bylaw 300 D which became effective August 1, 2013.  The Bylaw contains not only a general policy statement reflective of AB 1266, but also an example of guidelines by which a student’s good faith assertion of AB 1266 rights may be determined.

Additionally, our law firm has been active in counseling school districts concerning how best to approach the new law.  Steps to date include incorporating the new AB 1266 requirements into existing anti-discrimination policies and regulations, especially given the comprehensive regime of California and federal laws against sex and gender discrimination that pre-date AB 1266.  To assist school districts with specific transgender students, the Firm has developed an Individual Transition Plan (“ITP”) which engages an interactive process to gather information on a case-by-case basis to determine how best to accommodate the student’s AB 1266 rights.  The Firm is also regularly conducting workshops covering sexual orientation/transgender anti-discrimination laws to provide insight into ways school districts may effectively manage this complex area of law.

Within this current milieu, organizations opposing the AB 1266 have been successful in raising support for a referendum aimed at repeal.  “Privacy For All Students” (“PFAS”), the organization promoting the referendum, and The Pacific Justice Institute, obtained a court order requiring the Secretary of State to accept petition signatures in support of the referendum from counties where the signatures had been initially rejected. This legal victory allows the referendum process to continue toward the November 2014 ballot.

For those of us who find the referendum process a bit of a mystery, the Secretary of State’s website provides the following information describing how a referendum qualifies for the ballot.

The petitions must be signed by registered voters in an amount equal to 5% of the votes cast for all candidates for Governor at the last gubernatorial election. The total number of signatures required is 504,760.

Once the statewide total reaches at least 100% of the required amount of signatures (504,760), the Secretary of State directs the counties to begin a random sample verification of signatures. Counties have 30 working days to complete a random sample of 3% or 500 signatures, whichever is greater, and report their results to the Secretary of State.

If the statewide random sample total projects more than 110% of the required amount of signatures (555,237), the referendum would qualify for the ballot. If the statewide total is less than 95% of the required amount of signatures (479,522), the referendum would fail to qualify for the ballot.

If the statewide total falls between 95% and 110%, counties would be required to perform a full check of signatures and report their results to the Secretary of State within 30 working days. Once the statewide full count total reached 100% of the required amount of signatures, the referendum would qualify for the ballot.

If the referendum qualifies for the ballot (we will know soon — counties have a February 24, 2014 deadline to complete the “full check”) and a majority of voters support it, AB 1266 would be repealed and stricken from the law.  In the meantime, however, there is confusion as to whether school districts must comply with AB 1266.  PFAS claims that, by virtue of the fact that more than enough petition signatures supporting the referendum were submitted to government agencies last November, AB 1266 was effectively suspended and school districts should not implement it.

On the other hand, because of the uncertainties surrounding the current status of the law, many school districts are either fully implementing AB 1266 or maintaining pre-existing measures, such as private restroom facilities for transgender students.

Pending completion of the referendum and ballot processes and consistent with the privacy rights of all students, school districts are well advised to honor AB 1266 by taking affirmative steps to address the interests and concerns of individual transgender students, especially in light of the expansive protections afforded such students under established state and federal laws.

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