We’ve received a number of questions from parents seeking to better understand what the California Education Code and other applicable laws say about gender identity in public schools. Let’s start with two key questions.
Is parental consent required for a student to change their gender identification in official school records?
Yes. California law states that for any student under the age of 18, only a parent or guardian can request to change the student’s name or gender on their permanent school records. We’ll elaborate below.
Can a student ask to be addressed by the name or gender consistent with their gender identity at school without legal documentation?
Yes. Based on legislation that passed in 2013, school staff are required to respect a student’s request to address them by the name and pronouns consistent with that student’s gender identity, without requiring legal documentation or changing the student’s official school records.
A little more background
Under California law, school districts are required to establish, maintain and, in some circumstances, destroy pupil records according to regulations adopted by the state Board of Education. Similarly, the California Department of Education (CDE) has adopted administrative regulations that classify records as either mandatory permanent, mandatory interim or permitted. Mandatory permanent school records, which include a student’s name, date of birth and sex, are recorded in the state’s official educational database, known as the California Longitudinal Pupil Achievement Data System, or CALPADS.
Education Code section 49061 states that it’s the right of parents or guardians to access or challenge the content of pupil records for minors. Specifically, only a parent or guardian of a student — or the student, if they are an adult — may challenge the content of an educational record, submit a written response or allow records to be released. Based on Education Code section 49070, a request to change a minor student’s name or gender in their mandatory permanent public record can only be made by their parent or guardian.
It’s worth noting that CALPADS and other state records recognize three gender options — female, male and nonbinary. However, in passing Senate Bill 179, also known as the Gender Recognition Act of 2017, the California Legislature indicated that “nonbinary” is an umbrella term for people with gender identities that fall outside the traditional conceptions of strictly either female or male. The legislation acknowledged that individuals “may or may not use more specific terms to describe their genders,” with the Gender Recognition Act listing several examples for reference. But, again, official state documents continue to offer the options of female, male or nonbinary.
Assembly Bill 1266
In August 2013, California Gov. Jerry Brown signed into law Assembly Bill 1266, also known as the “School Success and Opportunity Act.” Introduced by Assemblyman Tom Ammiano and approved by the state legislature, this law requires that students be permitted to participate in sex-segregated school programs and activities — and use facilities — consistent with their gender identities, which may or may not be the same as the genders identified in their records. Previous state legislation had already barred discrimination in schools on the basis of gender, gender identity and gender expression, along with nationality, race or ethnicity, religion and sexual orientation.
AB 1266 took effect in January 2014, and a list of Frequently Asked Questions about the law posted on the California Department of Education’s website affirms that it is the right of parents to request changes to a minor student’s educational record. Although the official records cannot be modified or changed without parental consent, the CDE states that district staff must address the student by the name and pronouns consistent with the student’s gender identity without asking for legal documentation or changing the student’s official district record.
Here’s the CDE’s rationale:
“In addition to preserving a transgender student’s privacy, referring to a transgender student by the student’s chosen name and pronouns fosters a safe, supportive and inclusive learning environment. To ensure that transgender students have equal access to the programs and activities provided by the school, all members of the school community must use a transgender student’s chosen name and pronouns. Schools should also implement safeguards to reduce the possibility of inadvertent slips or mistakes, particularly among temporary personnel such as substitute teachers.”
If a school employee or other member of the school community intentionally uses a student’s incorrect name and pronoun, or persistently refuses to respect the student’s chosen name and pronouns, that conduct should be treated as harassment, according to the CDE.
Importance of privacy
The CDE notes that gender is a deeply rooted element of a person’s identity, and school districts should accept a student’s assertion of their gender identity while respecting their privacy. Educators are encouraged to engage in open dialogues with students and their parents if applicable, but the CDE says there may be times when revealing a student’s gender identity to others could jeopardize the student’s safety. One of the state’s FAQs specifically addresses whether a student’s gender identity should be shared with the student’s parents, as well as other students or members of the public.
Here’s an excerpt of the response:
“A transgender or gender nonconforming student may not express their gender identity openly in all contexts, including at home. Revealing a student’s gender identity or expression to others may compromise the student’s safety. Thus, preserving a student’s privacy is of the utmost importance. The right of transgender students to keep their transgender status private is grounded in California’s antidiscrimination laws as well as federal and state laws. Disclosing that a student is transgender without the student’s permission may violate California’s antidiscrimination law by increasing the student’s vulnerability to harassment and may violate the student’s right to privacy.”
The CDE says schools must consult with the transgender student to determine who, if anyone, can be informed of their transgender status, including the student’s family.
Evaluating gender-based policies
The state Department of Education further encourages schools to evaluate all gender-based policies, rules and practices and maintain only those that have a clear and sound pedagogical purpose. Examples of practices that may need to be reconsidered include gender-based dress codes for graduation ceremonies or senior portraits — or asking students to line up according to gender.
“Gender-based policies, rules, and practices can have the effect of marginalizing, stigmatizing, and excluding students, whether they are gender nonconforming or not. In some circumstances, these policies, rules, and practices may violate federal and state law. For these reasons, schools should consider alternatives to them,” the CDE says.
The full list of Frequently Asked Questions on AB 1266, the School Success and Opportunity Act, can be found on the CDE website.