New Transgender Student Rights Law to Take Effect on January 1, 2014

On August 12, 2013, Governor Jerry Brown signed Assembly Bill 1266 into law. AB 1266 provides transgender students have a legal right to access sex-segregated facilities and activities consistent with their gender identity. The bill amends California Education Code section 221.5 to include, at subdivision (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.

California is the first state to enact legislation explicitly allowing students to access sex-segregated facilities and activities according to their gender identity. Sex-segregated facilities and activities can include any program or location designated as “males only” or “females only.” For school districts, these often include locker rooms, restrooms, health classes or athletic teams.

Education Code section 220 already prohibits gender identity discrimination against students in educational programs and activities. Yet prior to AB 1266, the California Department of Education (“CDE”) advised school districts they were under no obligation to allow transgender bathroom and locker room access based on Education Code section 231, which states: “Nothing herein shall be construed to prohibit any educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes, so long as comparable facilities are provided.” CDE therefore encouraged school districts to offer alternative toilet and locker room accommodations for transgender students. However, AB 1266 clarifies that transgender students may access sex-segregated facilities in a manner consistent with their gender identity. A school district’s failure to provide access may result in liability under new subdivision (f) of Education Code section 221.5, and perhaps under California’s Unruh Civil Rights Act which prohibits facility access discrimination based on gender identity. (See Civ. Code § 51.)

At present, California law defines gender to include sex, gender identity, and gender expression, even when not “stereotypically associated with the person’s assigned sex at birth.” (Educ. Code § 210.7.) Overall, California defines gender broadly, leaving school districts without clear guidelines for ascertaining a student’s gender identity. (See Gov. Code § 12926(q)(2); see also Civ. Code § 51(e)(5).) While it is clear that school districts will need to take steps to ensure the student’s assertion of gender identity is sincere, we believe requests to use facilities or participate in gender-specific activities must be evaluated on a case-by-case basis until further legislative or judicial guidance is issued.

In addition to AB 1266, federal law, at Title IX of the Civil Rights Act, states “no person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.” (20 U.S.C. § 1681.) Currently, Title IX protects transgender students against harassment and discrimination based on their failure to conform to sex stereotypes. Recently, a California school district entered into a settlement agreement with a transgender student based on allegations that the school district’s failure to provide access to sex-segregated cabins constituted facility access discrimination under Title IX. Thus, AB 1266 may be consistent, to some degree, with existing federal law.

Under current law, school districts must have anti-discrimination policies encompassing gender identity. (Educ. Code § 234.1.) Prior to AB 1266’s taking effect on January 1, 2014, we advise school districts to update relevant anti-discrimination policies to include students’ right to access sex-segregated facilities and activities based on their gender identity in accordance with the new legislative mandates at Education Code section 221.5, subdivision (f).

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