As public school students in California return to school from winter break, school administrators must be prepared to allow students to participate in school activities in accordance with their gender identity under California’s new Transgender Rights law, which took effect on January 1, 2014. The new law, AB 1266 or the Success and Opportunity Act, revises Education Code 221.5 and requires public schools to respect students’ gender identity for purposes of all activities, including sports participation, and facilities, such as restrooms and locker rooms.  The new law is applicable to all public primary and secondary schools, as well as private schools that receive or benefit from state financial assistance or enroll students who receive state financial aid.

Prior to the passage of AB 1266, Education Code 221.5 prohibited schools from discriminating against students based on their gender identity.  Now, the rights of transgender students have been expanded such that each student must be allowed to participate in sex-segregated school programs consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records. AB 1266 marks the first time any state in the U.S. has mandated such treatment by statute.

On its face, the revised law does not indicate any particular process a student or parent must go through to declare his or her gender identity.  Nor does the law give any guidance on the process school administrators must use when a transgender student requests to be treated in accordance with his or her gender identity.  Opponents of the law, such as Frank Schubert, President of Mission Public Affairs, have argued that among the bill’s “many problems,” it is poorly drafted, lacks safeguards and balance, eliminates parental involvement, and employs a “one size fits all” approach that prevents educators from choosing less-invasive solutions.  Mission Public Affairs is seeking to repeal the law.

While the effect of AB 1266 on athletic competition at the secondary school level is not yet known, the new law requires a student be given the opportunity to participate in accordance with his or her gender identity.