Chair

Stephen Rohde

 

President

 

Shari Leinwand

 

Chairs Emeriti

Danny Goldberg Allan K. Jonas Burt Lancaster* Irving Lichtenstein, MD* Jarl Mohn Laurie Ostrow* Stanley K. Sheinbaum

 

Executive Director

 

Hector O. Villagra

 

Chief Counsel

 

Mark D. Rosenbaum

 

Deputy Executive Director

 

James Gilliam

 

Director of Philanthropy

 

Julie Weinstein

 

Director of Strategic Partnerships & Marketing

 

Vicki Fox

 

Legal Director & Manheim Family Attorney for First Amendment Rights

 

Peter J. Eliasberg

 

Deputy Legal Director

 

Ahilan T. Arulanantham

 

Director of Policy Advocacy

 

Clarissa Woo

 

Director of Community Engagement

 

Elvia Meza

 

Executive Director Emeritus

 

Ramona Ripston *deceased

August 14, 2013 Superintendent School District Inland Empire, CA Re: Your Legal Obligations to LGBTQ and Gender Nonconforming Students Dear Superintendent,

We write on behalf of the ACLU of Southern California’s LGBTQ Student Rights

Project, which was formed to stop unlawful bullying and harassment in California schools and to create school communities that promote safety and respect for all. Among other things, we help educate school districts about their legal obligations to lesbian, gay, bisexual, transgender, queer or questioning (LGBTQ) and gender nonconforming (GNC) students. We also work collaboratively with districts to help them take concrete steps to ensure all students, including LGBTQ and GNC students, enjoy a safe and bias-free learning environment. Specifically, we  provide advice and support to improve district policies and practices, as well as legal trainings and resources for suggested staff development and student educational programs. As you begin the new school year, we wanted to take this opportunity to alert you to the existence of our Project and offer ourselves to you as a resource should you ever need our assistance. We would also like to remind you of your legal obligations to your LGBTQ and GNC students and provide you with information you can use to ensure that your current policies and practices are in full compliance with the law. These suggestions are based on common  problems that we see and common complaints that we receive. We are eager and stand ready to serve as a resource and to work collaboratively with you in your continuing quest to provide a safe, secure and inclusive educational environment for all of your students, and particularly your LGBTQ and GNC students.

School Districts Must Not Discriminate

California law is very clear that school districts may not discriminate against students  based on their sexual orientation, gender identity, or gender expression. California Education Code § 220 provides that no person shall be subjected to discrimination on the basis of, among other things, sexual orientation, gender, gender identity, or gender expression in any educational institution that receives state funds. School districts must not only ensure that staff and administrators do not engage in prohibited discrimination and harassment of students but must stop peer-based discrimination, harassment and bullying as well.

 

 Page 2

Failing to respect a transgender student’s gender identity is prohibited gender identity and gender expression discrimination. Respecting a student’s gender identity include

s, among other things, addressing them by their chosen name and gender pronoun, allowing them to dress in conformity with their gender identity or in gender non-conforming ways, and providing them access to sex-segregated spaces such as restrooms and locker rooms, and activities such as gym class, in a way that corresponds to their gender identity.

1

 

School Districts Must Affirmatively Combat anti-LGBT Bias and Harassment

California law, specifically Cal. Ed. Code § 234.1, requires school districts to take a number of affirmative steps to combat anti-LGBT bias and harassment proactively: 1.

 

Adopt a policy

that prohibits discrimination, harassment, intimidation, and bullying based on the actual or perceived characteristics set forth in Section 422.55 of the Penal Code and Section 220 of the Education Code, including sexual orientation, gender, gender identity, and gender expression, or association with a person or group with one or more of these actual or  perceived characteristics. The policy shall state that it applies to all acts related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district. 2.

 

Adopt a process

 for receiving and investigating complaints of discrimination, harassment, intimidation, and bullying based on any of the actual or perceived characteristics set forth in Section 422.55 of the Penal Code and Section 220 of the Education Code, including sexual orientation, gender, gender identity, and gender expression, or association with a person or group with one or more of these actual or perceived characteristics. The complaint process shall include, but not be limited to, all of the following:

a.

 

A requirement that, if school personnel witness an act of discrimination, harassment, intimidation, or bullying, he or she shall take immediate steps to intervene when safe to do so.

b.

 

A timeline to investigate and resolve complaints of discrimination, harassment, intimidation, or bullying that shall be followed by all schools under the jurisdiction of the school district.

2

 

c.

 

An appeal process afforded to the complainant should he or she disagree with the resolution of a complaint filed pursuant to this section.

d.

 

All forms developed pursuant to this process shall be translated pursuant to Section 48985.

1

 Cal. Ed. Code § 220; 20 U.S.C. §1681;

see also

 AB 1266, signed by Governor Brown on August 12, 2013. Jeremy B. White,

 Jerry Brown Signs Bill Empowering Transgender Students

, Sac. Bee, August 13, 2013.

2

 Investigation and resolution of complaints shall take no longer than 60 days.

See

5 Cal. Code Regs. § 4631.

 

 Page 3 3.

 

Publicize

antidiscrimination, anti-harassment, anti-intimidation, and anti-bullying policies, including information about the manner in which to file a complaint, to pupils, parents, employees, agents of the governing board, and the general public. The information shall be translated pursuant to Education Code Section 48985. 4.

 

Post the policy

 in all schools, including staff lounges and pupil government meeting rooms. 5.

 

Maintain documentation

 of complaints and their resolution for a minimum of one review cycle. 6.

 

Ensure complainants

 

are protected from

retaliation

and that the identity of a complainant alleging discrimination, harassment, intimidation, or bullying remains

 confidential

, as appropriate. 7.

 

Identify a responsible local educational agency officer

 for ensuring school district or county office of education compliance with the requirements of the relevant Education Code and California Code of Regulations provisions.

School Districts Must Effectively Enforce Anti-Discrimination, Harassment, and Bullying Policies Intervention Required

:

School districts must actually enforce their discrimination, harassment, and bullying policies, and follow the mandated procedures for accepting, handling, and resolving discrimination, harassment and bullying complaints. Schools cannot just ignore anti-LGBTQ statements, harassment, or discrimination perpetuated by staff or students. Indeed,

Seth’s Law (AB 9) clarified that administrators, faculty and staff are required to intervene when

they witness discrimination, harassment or bullying if they can do so safely.

3

 

Listing All Protected Characteristics:

We have found that enforcement efforts are most successful when discrimination, harassment, and bullying policies are clear, thorough, consistent, and consistently described across all policy documents, regulations, student handbooks, and handouts. It is imperative that school districts consistently and accurately enumerate the classes of individuals protected from discrimination, harassment, intimidation and bullying, which includes actual or perceived gender, gender identity, gender expression and sexual orientation, as well as association with persons with those actual or perceived characteristics

 4

 Consistent and complete description of who is prot

ected ensures that the law and the districts’ policies are

clearly understood by all staff, students, and parents.

Simple and Harmonized Complaint Process:

It is also very important that your  policies, handbooks, and handouts are clear and consistent with regard to the complaint  procedure your students, parents, staff and community members can use to report violations of their own rights and the rights of others. This means that all documents that explain the

3

 Cal. Ed. Code § 234.1(b)(1).

4

 Cal. Ed. Code § 220.