Policy Paper 534

534 MIDTERM PAPER: POLICY ANALYSIS1

SOWK 534- Fall 2013

Midterm Paper: Policy Analysis

G. Niel Climer

October 9, 2013


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


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


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


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.


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


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


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


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


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,


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


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.


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


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


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


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


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


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


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


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


happen then AB 1266 will help transgender students become

transgender adults in an accepting society.


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Policy Paper 534

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Transcript of Policy Paper 534