Possible repeal of transgender student law would not change existing protections

November 13, 2013
Ashton Lee, 16, a  transgender boy from Manteca and advocate for the law. Credit: Gay-Straight Alliance Network

Ashton Lee, 16, a transgender boy from Manteca and advocate for the law. Credit: Gay-Straight Alliance Network

As efforts to overturn a new law allowing transgender students to use bathroom facilities and participate in sports teams consistent with their gender identity gain momentum, repeal of the law would have no impact on many existing policies protecting transgender rights in youth sports, according to legal advocates.

It would also, they say, not affect more comprehensive anti-discrimination policies in four school districts, including Los Angeles Unified.

Privacy for All Students, a Sacramento-based coalition of advocacy and religious groups, said this week that it had submitted 620,000 signatures – some 115,000 more than the 505,000 signatures required by the California Secretary of State – to put a referendum on the ballot challenging Assembly Bill 1266, which Gov. Jerry Brown signed into law on Aug. 12. The law allows transgender students to participate in school sports teams and other activities, and to use bathrooms, locker rooms and other facilities consistent with a student’s gender identity, regardless of the gender listed on the student’s records.

Repeal of the law, said Frank Schubert, campaign manager for Privacy for All Students, would give local school districts the flexibility to “seek less intrusive alternatives, such as access to a teacher’s facility, a single-stall restroom, private changing times” rather than allowing transgender students to use general student bathrooms and locker rooms consistent with their gender identity. Schubert is the national political director for the National Organization for Marriage, which was heavily involved in organizing for the 2008 ballot initiative that outlawed same-sex marriages, known as Proposition 8.

Even if the referendum were successful, repeal of the law would not affect existing California and federal laws, or school district and California Interscholastic Federation policies, that offer some protection for transgender students, said Ilona Turner, legal director of the Transgender Law Center, an Oakland-based organization that is involved in litigation across the country. Federal and state laws prohibit discrimination at school on the basis of gender identity, Turner said, but don’t provide detail about what that means for school districts. The number of transgender adults is estimated to be about 0.5 percent of the state’s population, and the percentage of transgender youth would be lower, Turner said. The term transgender refers to those who identify with a gender that differs from their sex.

Turner said repeal of the law would not affect the new regulation recently put in place by the California Interscholastic Federation that allows transgender students to participate in athletic events based on their gender identity – a boy who has established an identity as a girl playing on a girls’ basketball team, for instance.

The Federation, the governing body for high school sports in the state, secured protections for transgender student athletes in February 2013 when it voted to include in its bylaws the statement that all students should have the opportunity to participate in high school sports activities “in a manner that is consistent with their gender identity, irrespective of the gender listed on a student’s records.” That bylaw took effect Aug. 1.

Four school districts – Los Angeles Unified, San Francisco Unified, San Rafael City Schools and Willits Unified – have policies in place to allow transgender students to participate in all aspects of school life according to their self-identified gender, according to Carolyn Laub, executive director of the Gay-Straight Alliance Network. Those policies also would not change if the law is repealed. Laub’s group and others have created a website called Support All Students to explain the law and its implementation to parents, students and teachers.

In Los Angeles, the district has had a transgender inclusion policy since 2005, said Judy Chiasson, coordinator in the Office of Human Relations, Diversity and Equity of Los Angeles Unified. “What our policy states is that transgender boys and transgender girls get to go to school like all other boys and girls,” Chiasson said. “It has worked out incredibly well.”

She added, “It solves problems, it does not cause them. Because of our transgender policies and practices, our transgender students are able to engage in their education and feel part of the school community.”

Karen England, co-chair of Privacy for All Students, said the new law “violates the rights and privacy of 99 percent of students” and “mandates that you allow the mixing of showering and restrooms with biological boys and girls.”

“How bad is AB 1266, the co-ed bathroom bill?” the organization asks in a downloadable flier on its website. “It’s awful. This legislation invades the privacy of our children while they are in the most vulnerable areas of a school – showers, rest rooms and locker rooms. The bill allows any student to use the facilities reserved for the opposite sex simply by asserting a vague ‘gender identity.’ The bill contains no definitions, rules, standards or guidelines. It simply creates a right for students of the opposite sex to use the most sensitive private areas at school.”

Campaign manager Schubert said in an email, “To be certain, we do not believe that opening private areas of schools such as showers and bathrooms to members of the biologic sex is an appropriate response to concerns about bullying, but at least when left to local school districts parents have an opportunity to help shape and change policies as they are developed and implemented.”

If the signatures are validated, the new law would not go into effect as scheduled on Jan. 1, 2014. Instead, the referendum would ask voters in November 2014 to either uphold or repeal the law. A referendum is far less common than the ballot initiatives Californians have grown accustomed to – fewer than 50 referendums have been put on the state ballot in the last 100 years and fewer than 25 have been successful, according to the California Secretary of State’s office.

Supporters of the referendum include the California Republican Party and a coalition of religious groups. A number of significant financial contributions helped support the group in its signature-gathering drive. Large donors reported by the campaign this week included Florida columnist Rebecca Hagelin and her husband, who donated $25,000 to the campaign; Colorado residents Kenneth and Roberta Eldred, co-founders of the Christian charity grant-maker Living Stones Foundation, who gave $10,000; and Assemblywoman Kristin Olsen of Modesto, who gave $10,000. Sean Fieler, president of the hedge fund Equinox Partners in New York, gave $80,000 in September, $70,000 in October and $50,000 in November.

Supporters of Assembly Bill 1266, which was authored by Assemblyman Tom Ammiano, D-San Francisco, include the California State PTA, the California Association of School Counselors, the California Teachers Association and the California Federation of Teachers.

Jane Meredith Adams covers student health. Contact her or follow her @JaneAdams.

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