Post on 19-Jan-2023
534 MIDTERM PAPER: POLICY ANALYSIS1
SOWK 534- Fall 2013
Midterm Paper: Policy Analysis
G. Niel Climer
October 9, 2013
534 MIDTERM PAPER: POLICY ANALYSIS2
Introduction: Issue, Policy, Problem
Transgender rights is a relatively new branch of the civil
rights movement in America. Transgender folk are gaining voice
and emerging from the margins to claim their rights as citizens.
Transgender has been tucked behind issues of sexual orientation
as the fourth letter in the LGBTQ++, but transgender is about
gender not sexual orientation (Tauches, 2009). This experience
is different from the experiences of lesbians, gays, and
bisexuals (Timothy Biblarz, 2010). As this group grows in
visibility, a knowledge of key issues will be important. In
August, 2013 Jerry Brown signed AB1266 stating that transgender
students could use the bathrooms of their choosing in California
schools starting January 2014 (Wetzstein, 2013). This law came
into being, because local school districts were dealing with the
issues of transgender students. Transgender push for rights will
impact the workplace, the school, and even healthcare. This
paper will look at the history and impact of 1266 on transgender
rights. Public policy will need to to be proactive not reactive
in making decisions that work for the greater public good.
History and Scope
534 MIDTERM PAPER: POLICY ANALYSIS3
Defining transgender is important for this paper, so the
population of people impacted can be assessed. Transgender is a
term which the meaning has shifted over time, but an academic
definition states “individuals whose gender does not match their
biological sex at birth” (Tauches, 2009). State laws addresses
the issue from a different point of view. According to
California state education code 210.7. “Gender” means sex, and
includes a person’s gender identity and gender expression.
“Gender expression” means a person’s gender-related appearance
and behavior whether or not stereotypically associated with the
person’s assigned sex at birth” (SHRM, 2012). Academic and
legislative definitions have differences, and these differences
represents that transgender as a definition and group is
evolving. This can create some confusion about who is being
impacted by the policy.
The ability to get an accurate census of transgender is
difficult and there is not a depth of study upon transgender
populations (Timothy Biblarz, 2010). Studies of transgender
youth are smaller and less reliable (Purandare, 2013). A study
by Gary Gates aggregating several studies puts the population at
534 MIDTERM PAPER: POLICY ANALYSIS4
697,529 adults or .3% . (Gates, 2011). In comparison Down
Syndrome, a genetic variant disease, is 400,000 people in the
USA (NDSS). Compared to autism, 1 in 88 children are diagnosed
with autism 1.13% of the national population (Baio, 2012).
Transgender population being a fraction of percent nationwide put
this community on the margins.
Transgender in popular culture has been seen negatively.
Cross dressing is the gag line. Transgender has been seen as
sexually deviant. Popular culture portrays transgender as tragic
characters (Mazur, 2011). However, there is a growing trend of a
more sympathetic portrayal of trans people and characters
(Romano, 2012). Transgender is rising to the consciousness of the
United States with positive role models emerging in culture.
As transgender rises to consciousness, state laws reflect a
growing effort to address transgender needs. In 2000, Maryland
passed a law to protect ‘gay, lesbian, and bisexual Marylanders,’
the concept of transgender protection was absent (SHRM, 2012).
In 2009, and Delaware wrote a workplace law that ‘exclusively’
protected orientation not including gender identity (SHRM, 2012).
Colorado law includes transgender under the role of sexual
534 MIDTERM PAPER: POLICY ANALYSIS5
orientation (SHRM, 2012). Hawaii, Ohio, and California offer
definitions for gender identity that separate from sexual
orientation (SHRM, 2012). Laws written within the last five
years seem to address the transgender, while other states,
including progressive states like Massachusetts and New York have
older laws that do not address gender identity specifically as of
2012 (SHRM, 2012). The lack of uniformity in law reveals that
transgender rights are evolving and continuing to be defined.
AB 1266 was the first law that protected transgender on their own
terms.
The frontline struggle for transgender begins with the
bathroom. In the history of civil rights in the United States,
this is appropriate. Beginning with the integration of bathrooms
during civil rights, women workers having their own bathroom in
the workplace, disabled Americans having access to bathrooms at
work and schools (Transgender Law Center, 2005). Reading
transgender advocacy material from last decade, the struggle was
for rights in the work place. The bathroom became the
battleground. Over the last decade, the workplace became
protected through court cases and federal protections (Glenn v.
534 MIDTERM PAPER: POLICY ANALYSIS6
Brumby, 2011). Schools became a central focus of transgender
rights and protections. AB 1266 fits into this context.
Over the last decade, transgender advocates sought to expand
protection and rights. Transgender advocates used Student Safety and
Violence Prevention Act of 2000 for protection of individuals and the
assertion of rights. (Transgender Law Center, 2005). Transgender
legal advocates used the category sex to find protection under
law and then sought greater definition with the term gender.
Passing in 2007, Senate Bill (SB) 777 sought to redefine gender
in the state education code and provide protection from
discrimination for transgender students (Kim S. K., 2013). With
protective anti-discrimination laws in place, AB 1266 will
integrate transgender students into the mainstream of the school
through the participation of sports and other activities (Times
Editorial Board, 2013). AB 1266 for transgender advocates
represents a huge gain.
In local school districts, transgender student policy
differs. San Francisco Unified created a policy prior to AB 1266
protected transgender and gender non-conforming students (San
Francisco Unified School District). In comparison, Visalia
534 MIDTERM PAPER: POLICY ANALYSIS7
Unified has protected transgender students under a wider umbrella
that all students have the right to a safe learning environment
(Bartsch, 2013). Over the last few years in California,
lawmakers and some school districts have been providing more
protections and gaining a greater awareness of transgender
students.
Schools are important for our society and transgender
students. It is in schools that youth begin to socialize and
gain training to be productive as adults. 80% of transgender
youth reported feeling unsafe at schools (Kosciw, 2012).
Transgender students who are harassed at high levels will miss
school 53.2% vs. lower levels of harassment 20.4% . Harassed
students have lower educational aspirations (Lisa M. Diamond,
2011). The inability to be in school impacts students being able
to graduate (Kim S. K., 2013). SB 277 provided protection for
transgender students to feel safe. AB 1266 was written from the
perspective that a student’s access to a bathroom, locker room,
and sex-segregated activities, including athletics, will help
transgender students graduate.
Perspectives and Analysis of Policy
534 MIDTERM PAPER: POLICY ANALYSIS8
Previous policies provided a safe space for students, but AB
1266 opens up opportunities for students to participate more
fully in the life of school. Students will be allowed to
participate in activities in the gender they present, including
athletics (Kim S. K., 2013). So a student with male birth
certificate can swim for the girl’s water polo team if she wishes
to make the change. A student with a female birth certificate
will be allowed to join the boys during elementary sex education
lessons. All sex-segregated facilities and programs would be
open to transgender students and this includes locker rooms and
bathrooms. Allowing students to cross gender lines in bathrooms
and bathrooms has caused concerns.
The passage of AB 1266 generated controversy. In polling
most Californians not support AB 1266 (Yeh, 2013). Social
conservative organizations have spoken out against AB 1266.
Family Research Council states that sex is assigned at birth and a
‘objective biological reality’ (Sprigg) The argument is similar
to the argument against homosexuality as a preference.
Homosexuality in conservative Christian rhetoric is a choice and
an act, not a biological construct or a sense of being. Changing
534 MIDTERM PAPER: POLICY ANALYSIS9
genders is a choice understood as a personal sexual preference
(Sprigg). This viewpoint creates difficulty in generating a
dialogue between opposing viewpoints.
Some of the arguments have been more pragmatic. In other
court cases arguments against transgender rights focused upon the
disruption that accommodation of transgender individuals will
cause in the workplace. (Glenn v. Brumby, 2011) California Education
Committee in a lawsuit against the California state board of
education, argued that administrators would be forced to read
minds of students to determine sexual identity so to as not
accidentally discriminate against the student. (Kim S. K., 2013)
Both of these practicalities failed to win court cases.
Privacy for All Students seeks to use California’s direct
referendum to overturn AB 1266. They believe that the AB 1266
will be open to abuse, because students can claim to identify as
the opposite gender without any requirement to have presented
themselves before and lack of parental involvement (Privacy for
All Students, 2013). They filed a referendum on August 26, 2013
and will need 504, 760 signatures on their petition by the end of
March 2014 (California Secretary of State, 2013). The referendum
534 MIDTERM PAPER: POLICY ANALYSIS10
process, overturning laws in California, lacks popularity. The
most successful have revolved around Indian gaming and 1952 was
the last occasion when a non-Indian gaming referendum succeeded.
Frank Schubert of Mission Public Affairs leads this referendum has been
successful in leading initiatives, adding laws as opposed to
revoking law (Yeh, 2013). Churches who are the central to
petition gathering will have the Christmas holidays to gather
petition signatures.
The Catholic Church and conservative churches echoed the
same argument that the law is “one size fits all” (Hendrey,
2013). In Massachusetts, transgender rights and teaching bring
concerns about views of humanity that run counter to church
doctrines (Hasson, 2013). The concerns of Catholic parents might
lead them to move their kids from public school to private
schools. Protestant churches lack a network of schools that the
Catholic church posseses. The Catholic church could do more to
promote their schools as alternatives for parents who are
concerned about the imposition of transgender rights.
Pacific Justice Institute’s concern is that AB 1266 does not
force a student to pick a gender for a definitive amount of time,
534 MIDTERM PAPER: POLICY ANALYSIS11
like SFUSD and LAUSD policies. (Shafer, 2013). There is a
concern that a child will abuse the system for sexual
gratification or garner advantage in sports competition. This
concern does not match the process schools use to work with
transgender students. Bartsch and Ilona Turner, of Transgender
Law Center, say this is not the way it happens in practice
(Bartsch, 2013) (Shafer, 2013). Many of the concerns of the
parents fail to match reality. Choosing to change gender is not
a casual choice, but one that significantly alters the student’s
education. According to Bartsch, in VUSD elementary students and
families usually engaged the district that a child was dealing
with gender identity issues (Bartsch, 2013). Visalia Unified
does not have a written policy but handles issues of transgender
in a case by case basis.
California governing bodies tackled issues about
incorporating transgender students. In February 2013, the
California Interscholastic Federation amended their bylaws
opening sporting competitions to transgender students (Kim S. K.,
2013) (Noguchi, 2013). This move again preceded the law AB1266
534 MIDTERM PAPER: POLICY ANALYSIS12
and AB 1266 affirmed policy work already done by the governing
body of California high school athletics.
A few weeks before AB 1266, the Federal Department of
Education and the Department of Justice ruled in favor of a
student who faced transgender discrimination in Arcadia,
California. The school had an overnight camping trip and the
child would not be allowed to sleep in the boy’s cabin. Also the
school forced the child to use the nurse’s bathroom instead of
the boys (N, 2013). The filed a complaint of discrimination.
This action by the federal government complemented what AB 1266
would do.
The people most in support are transgender students and
their families (Shafer, 2013). With AB 1266, transgender
students feel they have a fair chance to graduate and succeed in
school. Some transgender students were not able to finish school
because of issues with physical education classes (Transgender
Law Center, 2013). This provides pathway for them to graduate.
For parents, it allows them to have confidence to begin a
conversation with a school district increasing their support. AB
1266 could build resiliency in these families.
534 MIDTERM PAPER: POLICY ANALYSIS13
For school districts there is a bit of ambivalence to 1266.
Some school districts had built a competency or wrote policy to
handle transgender students. Bartsch stated, he had not reviewed
the legislation to see its impacts. Some school districts
already have the policy (Kim S. K., 2013). With transgender
being a small population of students, school districts will move
from a ‘boutique’ and discreet way of working with families and
students more publicly (Noguchi, 2013) (Shafer, 2013).
Implementation of the law beings January 1, 2014, so school
districts have yet to experience the full impact of the law.
Impact
The impact will be most significant for transgender
children. Children know their gender, male or female, by age 4
(American Association of Pediatrics). The issue of gender
identity can impact a child before they begin school. School
districts educate and provide services to all children, including
those who struggle with gender identity. AB 1266 reaffirms to
parents that their child will be protected at school and have
access to all school activities. There are 6.2 million students
California who go to schools with thousands of teachers, support
534 MIDTERM PAPER: POLICY ANALYSIS14
staff and administrators (CALPADS, 2013) . A significant portion
of the California population will be impacted directly or
indirectly by this policy.
According to The Climate of Schools Report, there was a drop
in harassment between 2009 and 2011, the same time that schools
began enacting anti-bullying campaigns. (Kosciw, 2012) The
results of anti-bullying campaigns show education and school
policy impact safety for students. School policies that protect
students change schools.
Looking long term, AB 1266 provides an opportunity to build
resiliency in transgender students and families. 50% of
transgender youth will have at least attempted suicide by age 20
(Youth Suicide Prevention Program, 2011). Not only are there
psychological health concerns there are significant links between
low education attainment and health with infectious disease
(Catherine E. Ross, 1995). Transgender are at greater risk for
alcohol and drug abuse than gender conforming populations (Lisa
M. Diamond, 2011). The well-educated have greater psychological
health, social support, and greater economic resources (Catherine
E. Ross, 1995). Looking specifically at transgender populations
534 MIDTERM PAPER: POLICY ANALYSIS15
a study of transgender in Chicago and Philadelphia revealed,
half did not graduate from high school (Gretchen P Kenagy, 2005).
Each additional year of education decreased the need for
counseling, family planning, and child care (Gretchen P Kenagy,
2005). For transgender youth, school is a difficult place to
navigate with the trauma of locker rooms, single sex bathrooms,
teasing, threat of physical abuse, and verbal harassment (Lisa M.
Diamond, 2011). Provide pathways to reduce anxiety and create
policies of well-being can make a difference, as seen with anti-
bullying policies. Education of transgender students impacts
their biological-psychological-social health. If transgender
students get an adequate education then they will have greater
possibility for increasing resiliency and well-being.
Looking beyond education to medical policy, as more
transgender folk gain more rights and protections, the pressure
will be upon insurance companies to move gender transition from
an elective procedure to one that is covered (National Center for
Transgender Equality, 2012). As the Affordable Care Act evolves,
this could become a political issue. While a 9 year old child
struggling with gender identity is a sympathetic figure, a man
534 MIDTERM PAPER: POLICY ANALYSIS16
wanting gender transformation is not as much. AB 1266 is not the
final goal of transgender advocates and will look to expand into
more areas of rights and protections.
AB 1266 could provide a pathway for parents to reach out for
support from the school. Most parents who are ambivalent or
conflicted about GLB youth are seeking information on how their
actions impact their child’s health (Caitlin Ryan, 2009). The
expectation is that families of transgender youth will also seek
support. School districts who may have avoided transgender
issues, now have to accommodate trans students. Schools can help
provide resources to families and help decrease risk, increase
well-being, and build resiliency in family systems.
The fiscal impact of AB 1266 will be negligible at a state
level. AB 1266 does not require funding (Kim S. K., 2013).
Though school districts may have to make infrastructure changes
to accommodate the policy (Kim S. K., 2013). The other fiscal
impact will be students who may leave public schools. Parents
who oppose AB 1266 and other policies to move out of public
schools to private and home schooling options, creating a loss of
revenue for districts (Yarbrough, 2013). With AB 1266 becoming a
534 MIDTERM PAPER: POLICY ANALYSIS17
state law, districts now are more vulnerable to lawsuits if they
fail to comply. The impact upon local school districts is
unforeseen.
Politically, this will create another divide in California.
The red-blue divide is between coast of California that is
traditionally liberally and the interior that is staunchly
conservative. There will be supporters of AB 1266 who will say
that there will be no problems with the policy implementation.
Conservatives will feed upon the fears that locker rooms will
become seen of sexually compulsive or deviant teens running wild.
In truth, schools have already been working the issue because the
transgender students were there. AB 1266 becomes a public
statement about an issue that school districts who dislike
disruptions will have to handle the reactions.
Judgment
AB 1266 in the context of the work of the California
Intercollegiate Federation opening sports to transgender
students, seems to be catching up with where schools have been
moving. Bartsch shared that California Intercollegiate
Federation has provided great leadership in helping school
534 MIDTERM PAPER: POLICY ANALYSIS18
districts work with transgender students (Bartsch, 2013). AB
1266 provides more authority in the protection of transgender
student rights. On October 8, 2013 Jerry Brown signed a law
simplifying the process for transgender folk to get changed birth
certificates (Associated Press, 2013). California lawmakers and
governing organizations appear to be addressing issues of
transgender population with some intensity.
Parents working in partnership provide an opportunity for
teachers, staff, and administrators to be educated on transgender
issues. As schools become more familiar with transgender issues,
families gain access to school counselors and outside help.
School policies will be forced to become more sensitive to the
needs of transgender children. Teachers are now given an
opportunity to protect and advocate for transgender students.
Transgender moves from an issue to being a personal. Transgender
becomes a person to be experienced in the classroom, playground,
and fall carnival. AB 1266 expands protections, rights and
access to school activities for transgender students.
For the opponents of AB 1266, June 3, 2014 is California’s
next general election. If they gather the required number of
534 MIDTERM PAPER: POLICY ANALYSIS19
signatures, they will be able to put a referendum on the ballot
(California Secretary of State, 2013). However, the 2014
gubernatorial race seems to be a lopsided affair with Jerry Brown
exponentially ahead in fundraising (Richman, 2013). Will
Republicans generate a candidate that will bring people to the
polls to support the Privacy for All Students referendum? Churches,
like the Latter Day Saints, who led the charge in 2008’s Prop 8
battle show less enthusiasm to pursue political advocacy (Stack,
2013). The words of Catholic leadership in California were
nuanced (Hendrey, 2013). The money and energy to defeat a law
that is just an extension of previous policies appears
questionable.
AB 1266 works today. The great struggle lies ahead.
Reading about GLBTQI++ issues, the move to non-binary gender and
orientation is a significant topic (gsa network). The firm
identifiers of gender of today, could be gone in a decade.
Transgender policy and law focus upon plumbing of the boys and
girls bathrooms, eliminating sex-segregation on teams, changing
birth certificates, and ‘fixing’ people through surgery and
treatments. The progressive conversations in gender identity and
534 MIDTERM PAPER: POLICY ANALYSIS20
non-conformity are moving away from a binary (either/or) to non-
binary identification. This is problematic, because legislative
and school policy is focused on the binary. Schools are adapting
to educating transgender students and work to help the child move
as efficiently as possible to from one gender to the other
(Siebler, 2012). Non-binary gender identity will create
confusion for policy. It will be no longer the issue of helping
a child who identifies as a boy to be a girl, but that some
people feel an ‘oscillation’ of gender identity (Lisa M. Diamond,
2011). The social conservatives’ fear of children switching
gender identity daily will be manifested. This impending
conversation about transgender will be one that will be most
challenging for those raised in a binary world.
Today, conversation begins with the binary bills like AB
1266. The hope is that by having conversations in schools
between families and administrators, people will be able to
understand one another. Those conversations and relationships
begin between kids in the locker room and parents in the stands
watching their children play sports. If these conversations
534 MIDTERM PAPER: POLICY ANALYSIS21
happen then AB 1266 will help transgender students become
transgender adults in an accepting society.
534 MIDTERM PAPER: POLICY ANALYSIS22
References
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534 MIDTERM PAPER: POLICY ANALYSIS23
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534 MIDTERM PAPER: POLICY ANALYSIS24
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534 MIDTERM PAPER: POLICY ANALYSIS25
Noguchi, S. (2013, August 14). California law protecting K-12 transgender students gets mixed response. Contra Costa Times. Retrieved from http://zb5lh7ed7a.search.serialssolutions.com/?ctx_ver=Z39.88-2004&ctx_enc=info%3Aofi%2Fenc%3AUTF-8&rfr_id=info:sid/summon.serialssolutions.com&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&rft.genre=article&rft.atitle=California+law+protecting+K-12+transgende
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San Francisco Unified School District. (n.d.). San Francisco Unified School District Policy: Article 5: Students. San Francisco: SFUSD.
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Shafer, S. (2013, August 7). Proposed Law Would Require School Support for Transgender Students. Forum. San Francisco, CA. Retrieved from http://www.kqed.org/a/forum/R201308070930
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