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Districts Must Ensure Transgender Students’ Rights to Participate in Sex-Segregated Sports and Other School Programs under New Law

Assembly Bill 1266 (“School Success and Opportunity Act”) was signed into law by Governor Jerry Brown on Monday, August 12, 2013.  AB 1266 amends Education Code Section 221.5 to expressly allow transgender students the right to participate in school groups, including school sports and use facilities that correspond with their expressed gender identification.  Transgender students will have the right “to participate in sex-segregated programs, activities and facilities,” regardless of how their gender is listed on their school records.

Transgender refers to those who have a consistent gender identity that differs from their sex assigned at birth.  California law prohibits discrimination against students based on sex or gender under Education Code Section 220 and most school districts have adopted board policies expressing a clear commitment to prohibit discrimination in all forms.  (See, e.g., CSBA Model BP 0410, BP 5145.3, BP 6145)  However, AB 1266 now makes clear to school districts that the state non-discrimination law requires public schools to permit transgender students to participate in sex-segregated school programs and activities.  

Although the law does not go into effect until January 1, 2014, districts should begin following the law immediately to avoid exposure to discrimination claims.  District staff should be trained to allow for student participation based on that individual’s consistent gender expression.  Whenever questions arise as to whether a student’s professed gender identity is bona fide, school districts should use a confidential, respectful process to review documentation of the student’s consistent gender identification (gender identity in school records are irrelevant in this review).

Additionally, school district employees should be reminded of the right of students to privacy.  District employees should not disclose a student’s actual or perceived sexual orientation, gender identity or gender expression to others unless there is a specific “need to know”.  Please contact us if you would like assistance with development of appropriate policies, regulations or staff development.