Title IX of the Education Amendments of 1972 and Title IV of the Civil Rights Act of 1964 prohibit discrimination based on sex – and discriminating on the basis of gender identity is now considered discrimination on the basis of sex.
In a settlement agreement entered into between the U.S. Department of Education, the U.S. Department of Justice and the Arcadia Unified School District (AUSD) in July of 2013, a transgender student is defined as “a student who consistently and uniformly asserts a gender identity different from the student’s assigned sex, or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student’s core identity.”
In that settlement agreement, AUSD agreed to allow transgender students to use sex-specific facilities and participate in school activities consistent with the students’ gender identities. Also, AUSD agreed to adopt policies, procedures and administrative regulations that provide equal access and equal opportunity in school programs and activities that do not discriminate against students on the basis of sex. And, according to the California School Boards Association’s (CSBA’s) Interim Guidance Regarding Transgender Students, Privacy And Facilities, this settlement agreement sets a precedent for other students in other districts across California: discrimination based on gender identity is considered discrimination based on sex.
The federal government view on sex discrimination will remain true whether or not AB 1266, The School Success and Opportunity Act, is repealed by referendum.
Speaking of adopting transgender policies, in a recent interview with San Diego LGBT Weekly, Judy Chiasson, a Los Angeles Unified School District (LAUSD) program coordinator for human relations, talked about AB1266 and school policies. “When a school adopts a policy, the purpose of the policy is to repackage what the law says into terminology that is very convenient and digestible by schools,” she said.
LAUSD’s approach to transgender students parallels the federal government’s and AUSD’s settlement agreement approach to transgender students. And that’s noteworthy, because of that word “consistent.” The coalition behind the effort to put AB1266 up for referendum has stated that any male student can declare himself as a transgender one day and obtain access to any given public school’s girls bathrooms and locker rooms that same day to engage in inappropriate behavior.
Chiasson disagreed. “I would not want to imply that arbitrarily (a student) could show up and say, ‘During fifth period I want access to the girls bathroom because I’m transgender,’” she stated. “That’s not how we define transgender. And in our language, gender identity is something that’s consistent and persistent from day to day, hour to hour, across every aspect of their school life.”
What if a boy pretends to be transgender just to be a “peeping tom” in a girl’s locker room?
“I want to differentiate between somebody who says ‘today I’m this and tomorrow that’ as part of their process of trying to figure things out over somebody who is asserting that identity fraudulently,” said Chiasson. “And that is where we would take a very, very firm stance against – if we had any suspicion that someone was fraudulent, that their motivations were nefarious. Student safety is our primary concern.”
Chiasson added that it’s “ridiculous” to think a boy would consistently and persistently “present at school as woman or as a girl – dress, attire, name, known by everyone in the school community as a girl – just so he could get permission to have the opportunity to engage in misconduct.” She added, “People who are behaving inappropriately don’t go to the authorities and say ‘I’m going to inappropriate. Can I have your permission to do so?’”
In the 9 years of having a district transgender policy, LAUSD had not had even one student pretend to be transgender so they could engage in inappropriate or predatory behavior in girls bathrooms or locker rooms. Not once; not ever.
LAUSD, as well as every other California school district, has a misconduct policy. Fraudulently claiming to be transgender when one isn’t would be misconduct in any California school district.
Implementation of AB1266 wouldn’t erase school district misconduct policies; erasing AB1266 wouldn’t remove federal precedence regarding transgender students. Implementing AB1266 statewide is implementing the precedent policy of the DOE, DOJ and AUSD settlement agreement, and vice versa.
Hey. It’s a “get along, go along” moment that Californians just need to embrace.
The great irony is, the law was written to allow exactly what is now argued cannot happen. Since these sorts of policies were already in place, and since it is claimed that they are not going to change, the push to pass a new law, which much loser rules, seems sort of strange. Of course, now the extremists are in defense mode… It will be interesting to see what happens if the law is not overturned.