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California Referendum on AB 1266, Transgender Student Participation Based on Gender Identity (2014)

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A California Referendum on AB 1266, Transgender Student Participation Based on Gender Identity (#13-0015) was approved for circulation in California as a contender for the November 4, 2014 ballot as a veto referendum.[1]

The measure's proponents did not collect enough valid signatures to get the veto referendum placed on the ballot. Karen England of the Privacy for All Students, however, is contesting the signature count, saying, “We are preparing for the next stage of the battle. After months of waiting, we now get to see why so many signatures were thrown out. Certainly some signers were not registered to vote or had moved without changing their address. But it is also certain that many of those signatures were rejected based on reasons that will not survive a legal challenge.”[2] President of the Pacific Justice Institute, Brad Dacus, said, “We have been playing by their rules. Now it's our turn to go in and make sure they have properly treated signatures as they should be.” Dacus stated that the organization is willing to go to court.[3]

The veto referendum would have:

  • Ratified Assembly Bill 1266 (Chapter 85, Statutes of 2013);
  • Permitted elementary/secondary school students to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with the student's gender identity.

California Assembly Bill 1266 was sponsored in the California State Assembly by Tom Ammiano (D-17). There, it was known as the School Success and Opportunity Act.[4] The bill required public schools in the state to allow transgender students to use bathrooms, and participate on sports teams, that match the gender they identify with.[1]

The nature of a veto referendum is that the signatures that are collected to qualify the measure for the ballot are collected by the individuals and groups who oppose the underlying legislation. In this sense, the supporters of the referendum could be said to be those who opposed AB 1266. Nevertheless, a "yes" vote at the ballot box would have been a vote to ratify/sustain AB 1266 and a "no" vote would have been a vote to repeal AB 1266. In this article, therefore, the "opposition" section is about the groups and individuals who led the effort to qualify AB 1266 for the ballot and the "support" section is about those who supported AB 1266.

Ballot question

Ballot title:

Referendum to Overturn Non-Discrimination Requirements for School Programs and Activities.

Official summary:

"If signed by the required number of registered voters and timely filed with the Secretary of State, this petition will place on the statewide ballot a challenge to a state law previously approved by the Legislature and the Governor. The law must then be approved by a majority of voters at the next statewide election to go into effect. The law would permit elementary/secondary school students to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with the student's gender identity."

California Assembly Bill 1266

(This section displays the text of California Assembly Bill 1266. The text that appears with a blue background is the text that would be removed from the state's Education Code if a majority of California voters vote "no" on this ballot proposition.)

CHAPTER 85
An act to amend Section 221.5 of the Education Code, relating to pupil rights.
(Approved by Governor August 12,2013. Filed with Secretary of State August 12, 2013.]
LEGISLATIVE COUNSEL'S DIGEST

AB 1266, Ammiano. Pupil rights: sex-segregated school programs and activities.

Existing law prohibits public schools from discriminating on the basis of specified characteristics, including gender, gender identity, and gender expression, and specifies various statements of legislative intent and the policies of the state in that regard. Existing law requires that participation in a particular physical education activity or sport, if required of pupils of one sex, be available to pupils of each sex.

This bill would require that a pupil 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.

The people of the State of California do enact as follows:

SECTION 1. Section 221.5 of the Education Code is amended to read:

221.5. (a). It is the policy of the state that elementary and secondary school classes and courses, including nonacademic and elective classes and courses, be conducted, without regard to the sex of the pupil enrolled in these classes and courses.

(b) A school district may not prohibit a pupil from enrolling in any class or course on the basis of the sex of the pupil, except a class subject to Chapter 5.6 (commencing with Section 51930) of Part 28 of Division 4 of Title 2.

(c) A school district may not require a pupil of one sex to enroll in a particular class or course, unless the same class or course is also required of a pupil of the opposite sex.

(d) A school counselor, teacher, instructor, administrator, or aide may not, on the basis of the sex of a pupil, offer vocational or school program guidance to a pupil of one sex that is different from that offered to a pupil of the opposite sex or, in counseling a pupil, differentiate career, vocational, or higher education opportunities on the basis of the sex of the pupil counseled. Any school personnel acting in a career counseling or course selection capacity to a pupil shall affirmatively explore with the pupil the possibility of careers, or courses leading to careers, that are nontraditional for that pupil's sex. The parents or legal guardian of the pupil shall be notified in a general manner at least once in the manner prescribed by Section 48980, in advance of career counseling and course selection commencing with course selection for grade 7 so that they may participate in the counseling sessions and decisions.

(e) Participation in a particular physical education activity or sport, if required of pupils of one sex, shall be available to pupils of each sex.

(f) 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.

Support

Supporters

Supporters of AB 1266 included:

Arguments in favor

  • John Perez: "Transgender individuals have had to suffer through some of the worst indignities and personal problems of anybody in our society. This bill is about making sure there is a safe place for [transgender] kids to fully participate in their schools."[1]
  • Wendy Hill, a state legislative staffer said that when schools do not have a policy such as that in AB 1266, "some transgender students just don't go to the bathroom. They hold it all day long. There are higher incidences of urinary tract infections. They don't eat breakfast — the most important meal of the day — or even drink water in order to avoid going to the bathroom. Dehydrated, hungry kids aren't learning as well. They cut school and even leave school."[1]
  • Equality Matters contacted school officials from the state’s largest school districts in an attempt to locate any inappropriate behavior or harassment incidents caused by the law. They found no reported cases and fielded such findings as contradicting arguments made by opponents. The following are reports given by school officials:[7]
  • Los Angeles Unified School District: Dr. Judy Chiasson, LA Unified’s program coordinator for Human Relations, Diversity and Equity, said, “[W]e have had no incidents of anybody pretending to be transgender.” Regarding transgender children, she added, “We go by the rule of thumb of 'consistent/persistent' [gender identity]. We don't let children [decide], 'I'm gonna be a girl during P.E. and the rest of the day I'm going to be a boy.”
  • San Francisco Unified School District: San Francisco Unified’s Heidi Anderson, the district’s spokesperson, stated, “SFUSD [transgender protection] policy has been in place successfully for ten years ahead of [the law]. We work actively with all families to guarantee their children are welcome and safe in our schools, and that of course includes our LGB students, gender variant students, and transgender students.” The school district, she said, “[has] experienced no incidents” since the law went into effect.
  • Garden Grove Unified School District: Amy Stevens, the district’s spokesperson, said, “We are compliant with the law and have had no incidences.”
  • Sacramento City Unified School District: Gabe Ross, the district’s chief communications officer, noted, “"We haven't had anything [like “bathroom free-for-alls”]. Having students pretend to be transgender for a day isn't the intent of this policy and it isn't how it's going to be implemented.”
  • Riverside Unified School District: Jacquie Paul, Riverside Unified’s spokesperson, stated, “We haven't had any issues come up. Long before this law was in place, we were accommodating students who were transgender.”
  • San Jose Unified School District: Spokesman for San Jose Unified, Rich Garcia, said, “We have had no problems at our schools, no letters written to the Board, or parents come to our school board meetings. I know our staff gave this much thought and were very careful to find a solution to this law that would be sensitive to our students and community.”

Opposition

Opponents of AB 1266 referred to it as the Co-ed Bathroom Bill.[8]

Opponents

  • The effort to repeal AB 1266 by collecting signatures to place it on the ballot was led by a coalition called Privacy For All Students.[8]
  • Gina Gleason and the group, The Watchmen Ministry.[4]

Arguments against

  • Frank Schubert said, "Our challenge is to get on the ballot. If we do, I don't think we'll have a great deal of difficulty winning the campaign. Most people I talk to can't believe they did this. What were they thinking? To say that we need to open up our school showers and bathrooms just doesn't make sense."[1]
  • Gina Gleason said, "AB 1266 is a threat to the privacy and safety of public school students throughout California. Forcing boys and girls to share bathrooms, showers and locker rooms will not decrease bullying. It is bullying."[4]
  • Tim Donnelly, a Republican member of the California State Assembly, stated that AB 1266 "will take the normal hormonal battles raging inside every teenager and pour gasoline onto those simmering coals."[4]

Path to the ballot

See also: Signature requirements for ballot measures in California
  • Gina Gleason submitted a letter requesting a ballot title on August 16, 2013.
  • A ballot title and summary were issued by the Attorney General of California's office on August 26, 2013.
  • 504,760 valid signatures are required for qualification purposes.
  • The 150-day circulation deadline for #13-0015 was November 10, 2013.
  • About 620,000 signatures were filed with election officials on November 10, 2013[9]
  • 487,484 were deemed valid on February 24, 2014.[2]

Supporters of the effort to overturn AB 1266 said in mid-October that they had collected roughly 500,000 signatures. Their objective was to collect about 700,000 signatures by the November 10 deadline to ensure an adequate cushion.[1] In the end, the effort turned in 619,244 signatures. Roughly 82% of the submitted signatures must be valid for the referendum to qualify for the ballot.

Opponents of AB 1266 filed 619,244 signatures by the November 10, 2013 signature deadline, versus a requirement of 504,760 valid signatures. On January 8, 2014, election officials announced that a spot check of the signatures indicated that if all the signatures had been checked for validity, there would be signatures equaling 95.6% of the required number. Under California law, if the spot check is a number over 95%, this triggers a process whereby every signature must be individually checked.[9][10][11] Only 487,484 signatures were deemed valid by the county election officers who were responsible with counting signatures.[2]

Gina Gleason, an opponent of AB 1266, said, "Many people said we had no chance to collect over half a million signatures in just 90 days, but we have proven them wrong by gathering over 115,000 more signatures than the minimum needed."[9]

On February 24, 2014, county election officials, who were responsible for counting valid signatures, deemed that 487,484 signatures were valid, thus falling short by 17,276 signatures.[2] Therefore, the veto referendum did not make the ballot.

Lawsuits

See also: List of ballot measure lawsuits in 2014

Gina Gleason vs. Debra Bowen

Debra Bowen, the California Secretary of State, said that about 5,000 signatures submitted in Mono County and Tulare County on Tuesday, November 12 were filed after the November 10 deadline. Those attempting to qualify the referendum for the ballot filed a lawsuit against that decision by Bowen. In early January 2014, a Sacramento County Superior Court judge, Allen Sumner, ruled against Bowen and said that the signatures must be accepted. The reason for this is that November 10 was a Sunday, and November 11 was Veteran's Day, a holiday, and the election offices in the two counties were closed. The judge wrote, "Ever since the voters enacted the referendum power in 1911, courts have liberally construed its provisions to protect the voters' power. The fact that the deadline for submitting petitions falls on a weekend preceding a holiday, or the county registrar closes a noon on Friday, should not prevent Petitioner from having her petition signatures accepted."[10]

Pacific Justice Institute vs. Debra Bowen

On March 25, 2014, the Pacific Justice Institute initiated a lawsuit in the Sacramento Superior Court that would compel Secretary of State Debra Bowen (D) to place the veto referendum on the ballot. The group argues that county election officers "improperly" invalidated around 17,276 petition signatures.[12]

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