[I will soon be updating this post to reflect an exciting development: The California Secretary of State has determined that opponents of California’s new law failed to gather enough valid signatures to force a statewide vote to repeal it. The battle to preserve the law is not over yet, but the recent news represents an important victory. – MK (February 27, 2014)]
Original post as updated February 12:
LGBT equality advocates across the country are bracing for the results of a full signature count in California that will determine whether the state’s new transgender student equality law, often called AB 1266, will face a repeal vote in the November 2014 election. Opponents of AB 1266 submitted 619,244 signatures in support of their repeal effort; 504,760 of these must be deemed valid for the repeal question to go to voters.
In the face of misleading talking points from the law’s opponents, plus some less-than-stellar media coverage of the issues, this post aims to clarify some of the confusion surrounding the new law.
This post is (and will continue to be) a work in progress; that is, I’ll start today with some of the basics, and I’ll periodically add new questions and answers, as well as links to new sources and other materials. (Latest update: February 12; see below.) If you’d like to suggest something for the post, or have other ideas, objections or concerns, leave a comment below or send a private note via the Youth Allies contact form.
Click on any of these questions to jump to the answer (or simply scroll down):
- Does AB 1266 allow students to access whichever sex-specific facilities (male or female) they choose?
- Will AB 1266 lead to harassment? (Updated February 12, 2014)
- Do other laws recognize transgender students’ rights in similar ways, or is AB 1266 “unique” and “unprecedented,” as many claim? (Added January 29, 2014; last updated February 12, 2014)
What does the law, known as AB 1266, do exactly? Is it just about bathrooms?
The new law, officially named The School Success and Opportunity Act and often called AB 1266, clarifies preexisting non-discrimination laws for students in California schools. Its most important provision states as follows:
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.
In other words, AB 1266 ensures that all students, including transgender students, can access sex-segregated school programs and facilities (including but not limited to bathrooms, locker rooms, and sports teams) in accordance with their gender identity, regardless of whether that identity matches the sex on file for them in school records (which typically reflect the sex that the students were assigned at birth). So, under AB 1266, a student who self-identifies and presents himself as a boy can try out for a school’s boys-only soccer team (provided he meets other, gender-neutral requirements for the team), even if school records, relying on the sex he was assigned at birth, identify him as a girl.
Note that if properly applied and enforced, preexisting non-discrimination laws already protect transgender students’ right to access programs and facilities consistent with their gender identity. In some sense, therefore, AB 1266 doesn’t really expand students’ rights. (I address this point in more detail in one of the other answers, below.) AB 1266 does, however, provide desperately needed clarity and guidance to school administrators, who frequently don’t know about or fully understand their legal obligations to accommodate and protect all students, including transgender students. The law also informs and empowers students and parents by spelling out students’ rights in more detail than the law previously provided.
Does AB 1266 require “co-ed” bathrooms?
Opponents of AB 1266 have dubbed it the “co-ed bathroom” bill, but this mischaracterizes the law in at least two ways.
First of all, the law isn’t limited to bathrooms. AB 1266 applies to all school activities and programs that are segregated by gender, including, for example, certain sports teams and even some classes (like certain physical education classes).
Second, even when it comes to bathroom and locker-room access, AB 1266 does not authorize “co-ed” facilities. A “co-ed” facility is by definition a facility open to both men and women, or both boys and girls. AB 1266, however, does not require schools to make any facilities co-ed or gender-neutral. Instead, it provides that when programs or facilities are not co-ed, schools must permit a student to access the facility or program that corresponds to the student’s gender identity. (Schools may offer gender-neutral or “unisex” bathrooms—and, if done properly, it may be a good idea. But AB 1266 does not require it.)
Those who call AB 1266 a “co-ed bathroom” bill do so either because they misunderstand the law, because they aim to misrepresent the law, and/or because they don’t really believe that transgender boys are boys and that transgender girls are girls. Many opponents adopt a genital-focused view, insisting that a student who self-identifies as a girl and presents herself consistently as a girl is nevertheless a boy if she was born with male genitalia and hasn’t had sex reassignment surgery. (In controversial comments that made national headlines last year, for example, a school board member in Colorado said that transgender children should not have access to facilities that correspond to their gender identity unless the children change their “plumbing.”) This approach and attitude—of rejecting and even mocking a student’s stated gender identity based on what one believes about his or her genitals—is deeply offensive and harmful to transgender people, including transgender children.
Does AB 1266 allow students to access whichever sex-specific facilities (male or female) they choose?
The media frequently mischaracterizes AB 1266 by suggesting that schools will no longer be able to restrict access to particular facilities or activities by sex or gender. A CBS report last summer, for instance, said that the law requires schools to allow students to access “whichever restroom and locker room they want.” But this is incorrect, or at least very misleading. The law does not provide that students may access any facility they choose regardless of their gender identity. If a student identifies and presents himself as a boy, he has no right under AB 1266 to access a facility that is lawfully restricted to women and girls (like the girls’ restroom). Likewise, a student who identifies as a girl does not have a legal right under AB 1266 to access a facility restricted to men and boys.
Of course, transgender students may at some point in their life “choose” to come out as transgender by (for example) revealing to school administrators, classmates, or others that their gender identity does not match the sex they were assigned at birth. By choosing to come out, one might say, these students are effectively making a “choice” about which sex-segregated facilities or activities they will access in the future. In this extremely limited sense, AB 1266 does require schools to respect a student’s “choice.” But a young transgender person’s decision to come out and to live in accordance with his or her gender identity is a decision (or “choice”) we should respect and protect, not fear.
Will AB 1266 lead to harassment?
Some people claim, quite unreasonably in my opinion, that AB 1266 will embolden cisgender (i.e., non-transgender) male students to claim they are transgender in order to enter the girls’ locker rooms or bathrooms to harass their female classmates. There’s absolutely no evidence, however, that cisgender students go around lying to school administrators about their internal sense of their own gender. Moreover, large school districts within California, like the Los Angeles Unified School District (LAUSD), have had a policy much like AB 1266 in place for many years, and have not reported problems. The coordinator in the LAUSD’s Office of Human Relations, Diversity and Equity says that the district’s trans-inclusive policy “has worked out incredibly well” and that it “does not cause” problems.
Other school districts in California have similarly adopted transgender-inclusive policies without incident, as Luke Brinker describes in a February 11 post for Equality Matters, a project of Media Matters. Brinker writes:
Following passage of the law, right-wing media figures issued apoplectic predictions of bathroom harassment and inappropriate behavior, warning that students would pretend to be transgender in order to sneak into opposite-sex bathrooms.
Equality Matters contacted officials from a number of California’s largest school districts to determine whether the right-wing horror stories about transgender students had come true in the first month of the law’s implementation. Unsurprisingly, none of the school districts reported incidents of harassment or inappropriate behavior, with several pledging to continue accommodating transgender students even if the law is repealed in a referendum.
Rather than focus on the exceedingly unlikely (even fanciful) scenario of cisgender male students scheming to enter the girls’ bathroom by falsely claiming to school administrators that they are transgender, we should focus instead on the very real crisis of transgender students’ getting harassed because they are unable to access the restrooms and other facilities that correspond to their gender identity. California’s legislators enacted AB 1266 in large part to address this real, not hypothetical, problem.
Opponents of AB 1266 have tried to cause alarm with reports of transgender students’ mistreating other students in the restroom, but I’m unaware of any such report that turned out to be accurate. Last year, several media sources reported that a transgender student in Colorado had harassed her classmates in the bathroom; a similar report about a transgender student in Los Angeles also made the news. However, some simple fact-checking (which several media outlets hadn’t bother to do) revealed that both of these reports were false.
Do other laws recognize transgender students’ rights in similar ways, or is AB 1266 “unique” and “unprecedented,” as many claim? (Added 1/29/14; last updated 2/11/14)
While AB 1266 is, in limited but important respects, unique (as explained below), media reports frequently exaggerate the extent to which the law breaks new ground, because they overlook similar legal developments at all levels of government and in different parts of the country. Authorities charged with enforcing federal, state and local non-discrimination laws have increasingly recognized the right of all students, including transgender students, to access programs and facilities consistent with their gender identity.
Consider, for example, the following:
- When properly applied, federal laws barring sex discrimination—like Title IX and the Constitution’s Equal Protection Clause—protect transgender students’ right to equal educational opportunity in public schools. While interpretation of federal civil rights laws has varied, courts and enforcement agencies have increasingly recognized that discrimination based on gender identity is a form of sex discrimination, which federal law prohibits in public education (with only narrow exceptions). Federal prohibitions on sex discrimination exist, of course, completely independently of AB 1266, and they apply nationwide. In recent years, federal agencies have begun to enforce these sex-discrimination laws to ensure equal opportunity and safe educational environments for transgender and other gender-nonconforming students: Even before California enacted AB 1266, for example, the federal Departments of Education (DOE) and Justice (DOJ)—acting under their authority to enforce federal sex-discrimination laws—investigated a discrimination complaint filed by a male transgender student against the Arcadia Unified School District in California, which had restricted the student’s access to sex-segregated programs and activities. The investigation and a related lawsuit led to a landmark settlement agreement that requires, among many other things, that the school district provide the student with equal access “to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity.” (DOJ summarizes the case here.) As Lambda Legal explains, “[t]he settlement reached by the federal agencies confirms that the federal laws protecting students against sex discrimination—Title VI and Title IX—cover transgender students in all aspects of education, including gender-appropriate use of sex-segregated facilities and participation in extra-curricular activities.” (The National Center for Lesbian rights, which represented the student, offers a similar assessment of the case’s significance here.) The government’s work in the Arcadia matter builds on the DOJ’s efforts in other areas of the country, including in another California district, in Minnesota and in two cases in New York, to protect students from discrimination and harassment based on sex stereotypes. The DOJ’s actions on this front are also consistent with developments in the employment context, where courts and agencies have similarly interpreted federal prohibitions on sex discrimination to encompass gender-identity discrimination.
- Non-discrimination laws in about a dozen states, including in California, explicitly prohibit discrimination in public (or publicly funded) schools on the basis of “gender identity” and/or “gender expression.” The Gay, Lesbian & Straight Education Network has published a map and summary of those laws here; the Human Rights Campaign has a similar map here. (It’s important to emphasize, moreover, that California’s underlying, gender-identity-inclusive non-discrimination law exists independently of AB 1266, and is not being subjected to a repeal effort.) Properly applied, most or all of these state laws should protect students’ right to access sex-segregated programs and facilities consistent with their gender identity. Enforcement entities have increasingly recognized this, as explained below. Gender-identity-inclusive policies may exist at the local level as well, including in areas of the country without inclusive state-level protections.
Consistent with the laws noted above, courts and other authorities in several parts of the country have issued decisions, policies and legal guidance specifically recognizing students’ right to access sex-segregated programs and facilities consistent with their gender identity. In a major victory for transgender youth, for example, Maine’s Supreme Court ruled in early 2014 that a school unlawfully discriminated against a transgender girl by barring her from the girls’ restroom. And in Colorado, the state Division of Human Rights held in 2013 that the Fountain-Fort Carson School District violated a state law banning discrimination based on sex and gender identity in educational institutions when the district refused to allow Coy Mathis, a young transgender girl, to use the first grade girls’ restroom. Elsewhere in the country, education authorities have taken action to protect transgender youth by publishing guidance for schools regarding student access to sex-specific programs and activities. Guidelines from the State of Washington, for instance, explain that schools “should allow students the opportunity to participate in physical education and athletic activities in a manner that is consistent with their gender identity.” The guidelines also call for schools to “allow students to use the restroom that is consistent with their gender identity consistently asserted at school”; schools are advised to adopt a similar approach to locker rooms “[i]n most cases.” Massachusetts’ Department of Eduction has issued similar guidance, as has a civil rights agency in Iowa.
- Within California, transgender-inclusive non-discrimination policies are nothing new: The Los Angeles Unified School District (LAUSD), with over 662,000 students, approved a transgender-inclusive policy in 2005. The LAUSD policy, updated in 2011, provides that students “shall have access” to restroom and locker-room facilities “that correspond to their gender identity asserted at school”; participation in competitive sports, however, is “to be addressed on a case-by-case basis.” Additional updates are likely in light of AB 1266. Other school districts, including the San Francisco Unified School District, also adopted transgender-inclusive policies before AB 1266 took effect. Luke Brinker summarizes these and other local policies in California in a February 2014 Media Matters post debunking myths about AB1266.
Despite all this, AB 1266 is both unique and unprecedented in some respects. Most importantly, it is the only state statute to explicitly protect all students’ right to access public school programs and facilities consistent with their gender identity. In other words, while other laws that generally prohibit discrimination based on sex and/or gender identity should be (and increasingly have been) interpreted by schools and enforcement entities to protect transgender students’ equal rights in the context of sex-segregated programs and facilities, AB 1266 is unique because it establishes an express, statewide, statutory mandate to ensure that schools and agencies adopt a fully transgender-inclusive approach to these issues.
With AB 1266 in place, transgender students in California don’t have to rely on an agency or court to interpret general non-discrimination laws in a way that protects their access to sex-segregated programs and facilities consistent with their gender identity; nor do they have to rely on state administrative regulations or other sorts of non-statutory legal guidance that may be more difficult than a statute to enforce. (Administrative regulations, even if binding, are also easier to amend or to rescind than legislatively enacted statutes.) Relatedly, AB 1266 eliminates the risk that schools, courts or other entities in California will narrowly interpret the state’s non-discrimination laws in a way that fails to guarantee equal access for transgender students. Such narrow interpretations have proven a problem in some places: In Maine, for example, a lower court held that a school could deny a transgender girl access to the girls’ restroom even though Maine law expressly protects students from sex discrimination and gender-identity discrimination. Fortunately, the Maine Supreme Court reversed that decision, but it took a long legal fight to reach the right result. In other parts of the country, problematic federal and state court rulings regarding transgender rights remain in place, despite the recent state and national trend toward greater recognition of transgender equality.
Finally, AB 1266 provides particularly robust protection because, unlike many other transgender-inclusive policies, it does not provide for any exceptions to equal treatment or authorize schools to deny equal access on a “case by case” basis.
Why is a referendum on AB 1266 even possible?
Like many other (but not all) states, California has an “initiative and referendum” process that allows voters to bypass the legislature and to pass or repeal laws directly through a statewide popular vote. Under the state laws governing initiatives and referendums (referenda?), opponents of a legislatively enacted law can block it from taking effect (at least temporarily) and can force a statewide popular vote to repeal it if they gather a certain number of signatures from registered voters within a defined time period. (By reading the guide available here, you can learn all the glorious details of how the law defines this time period and how it determines the required number of signatures.)
In the case of AB 1266, opponents of the law had to submit 504,760 valid signatures to put the law on hold and to force a referendum on the issue in the November 2014 elections. They submitted 619,244 signatures, which of course sounds like a lot, but we still don’t know how many of them are valid. (A signature could be invalid, for example, if it is a duplicate, or if it is from a person who is not registered to vote.) Based on state officials’ initial review of signatures, which involved checking the validity of a random sample, opponents of AB 1266 have at least come close to submitting the necessary number of valid signatures. State officials are now conducting a full check (not just a random spot check) of all 619,244 signatures. They have until February 24 to complete that review. In the meantime, AB 1266 has gone into effect.
When will we find out if a referendum will take place?
State officials have until February 24 to determine whether opponents of AB 1266 have gathered enough valid signatures to force a referendum on the law in November.
It’s possible, though, that proponents or opponents of AB 1266 will file some sort of lawsuit challenging the results of the full signature count if they view the count as legally flawed and if it doesn’t yield their desired result. I’m not aware of any specific plans to file a suit along these lines, but I assume that lawyers on each side of the issue are at least researching the feasibility of a legal challenge as a contingency plan. (There’s some precedent for this outside of California: In 2008, Lambda Legal secured a court ruling blocking an anti-transgender referendum from taking place in Montgomery County, Maryland. Lambda successfully argued that “the number of signatures needed to put the referendum petition on the … ballot was insufficient and that the Montgomery County Board of Elections over-counted purported signature entries in violation of detailed statutes that safeguard the referendum process.”)
If anyone files a lawsuit challenging the results of the full signature count, it may be a while before we know whether the proposal to repeal AB 1266 will appear on the November ballot.
Where can I learn more?
I’ll be updating this post again to include additional questions and answers about AB 1266. (Latest update: February 12.) In the meantime, you can learn more about the law and the repeal efforts on the Support All Students website (supportallstudents.org). And if you’ve got specific questions that you’d like me to address here or in another post, let me know!
Reminder: Nothing in this post, or anywhere on this site, constitutes legal advice. Read the site Disclaimers for more detail.
* * * *
 “Gender identity” refers to a person’s internal sense of being a particular gender. In the case of a transgender person, the person’s gender identity differs from the sex that he or she was assigned at birth. GLAAD has a useful glossary of transgender-related terminology at this link. The American Psychological Association also defines key terms in a resource called Answers to Your Questions About Transgender People, Gender Identity and Gender Expression.
 Title IX of the Education Amendments of 1972 bans sex discrimination in any school or education program receiving federal funds. (Most public schools receive federal funds.) The Constitution’s Equal Protection Clause, which applies to all state officials and entities of state governments, including school districts, prohibits discrimination based on sex except where the discrimination is substantially related to achieving important governmental objectives. In interpreting the Clause’s protections, the Supreme Court has demanded “exceedingly persuasive justification[s]” for any sex-based classification.
 One powerful example comes from an influential and generally quite conservative federal appeals court based in Atlanta, which ruled unanimously for a transgender plaintiff in a 2011 case. (Lambda Legal summarizes the case here). The federal Equal Employment Opportunity Commission has also recognized that “discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964,” a federal law that bars discrimination in the workplace (emphasis added). Cases dealing with employment are relevant and important to the education context, because the question of whether anti-transgender discrimination counts as “discrimination based on sex” generally does not vary from one context to another. The Departments of Justice and Education address these points and others in footnote 3 of their July 2013 letter to the Arcadia Superintendent in California.
 The Iowa State Civil Rights Commission has published legal guidance recognizing that public accommodations must provide transgender individuals access to sex-segregated facilities “appropriate to their gender identity”; the Commission helpfully explains that “just as non-transgender individuals are entitled to use a restroom appropriate to their gender identity without having to provide documentation or respond to invasive requests, transgender individuals must also be allowed to use a gender-identity appropriate restroom without being harassed or questioned.” While the Iowa guidance does not refer explicitly to students, it does make clear that state law defines “public accommodations” to include “[a]ny state, local, or governmental unit that receives tax support,” such as “[s]chools.”
- On February 12, I updated this post to (1) add some details and nuance to a section discussing federal law; (2) better incorporate information on GLAD’s recent victory in Maine; (3) incorporate a recent report from Equality Matters (a project of Media Matters) debunking myths about California’s new law; and (4) make other more minor, stylistic changes.