On August 12, 2013, the Governor of California approved amendments to the California Education Code that provides certain rights for transgender students from kindergarten through grade 12.1 The law requires public schools to permit students to access the washroom of their choice and participate in sex-segregated activities according to their own sense of gender identity, regardless of the gender listed in a student’s records.
The amendment to section 221.5 of California’s Education Code states as follows:
- 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.
- 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.
- 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.
- 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.
- Participation in a particular physical education activity or sport, if required of pupils of one sex, shall be available to pupils of each sex.
- 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.
American courts have heard several cases dealing with transgendered students’ rights. For example, in Massachusetts, the Superior Court held that a transgendered student had the right to dress according to her gender identity.2 In 2009, the Maine Human Rights Commission found discrimination where a transgendered student in grade five was forced to use the staff washroom for her own safety after being attacked in the girls’ washroom.3 The Commission found that the consequence of the school’s actions were “to ostracize a vulnerable child from her peers, amplifying her feelings of being ‘different’”.4 Using the staff washroom was not, therefore, an appropriate accommodation.5
Although there is no law in any Canadian jurisdiction that grants specific rights to transgendered students, provincial anti- discrimination legislation may require accommodation for transgendered youth that mirrors some of the provisions of the California law. The application of anti-discrimination legislation to transgendered persons varies by province. In Quebec and British Columbia, human rights tribunals have considered discrimination relating to transgendered individuals to fall within the ambit of discrimination on the basis of “sex” or “sexual orientation.”6
Ontario has taken a different approach. In June 2012, Ontario added “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Human Rights Code7 in recognition of the fact that a person’s gender identity is “fundamentally different from and not determinative of” their sex or sexual orientation.8
Because this is a new and evolving area of law, there is limited case law to interpret anti- discrimination provisions with respect to trans- gendered youth in the Canadian school context.
In 2010, a group of parents in Abbotsford, British Columbia filed a human rights complaint with the British Columbia Human Rights Tribunal (“BCHRT”) arguing that the Abbotsford School Board’s (the “Board”) failure to include certain topics in the curriculum related to lesbian, gay, bi-sexual and transgendered people was discriminatory.9 The group had settled a prior claim with the Board where the Board had agreed to implement an elective course in social justice that covered those topics, but the Board withdrew the course before it started. The group argued that the Board withdrew the course in response to other parents’ concerns about the content, whereas the Board claimed that the course was still under review. The Board tried to have the case dismissed on various preliminary grounds, but was unsuccessful.
In 2012, the Ontario Human Rights Tribunal found that the Ontario government discriminated against a transgendered person by requiring proof of transsexual surgery before permitting them to change the sex indicated on their birth certificate.10 The Tribunal commented on the tendency to focus on physiology in the context of gender:
This reinforces the prejudicial view in society that, unless and until a transgendered person has “transsexual surgery”, we as a society are entitled to disregard their felt and expressed gender identity and treat them as if they are “really” the sex assigned at birth.11
Bullying at school has been identified as a major concern for transgendered students. The Ontario Education Act definition of bullying was amended to specifically refer to “gender identity” and “gender expression” [emphasis added]:
"bullying” means aggressive and typically repeated behaviour by a pupil where,
the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,
- causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property, or
- creating a negative environment at a school for another individual, and
- the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education;12
Under Ontario’s Human Rights Code,students have the right to equal treatment, free from harassment and discrimination because of gender identity or gender expression. The Ontario Human Rights Commission has said that harassment in this context includes, but is not limited to making transphobic comments and jokes, and ridiculing, singling out or humiliating a student because of their gender identity and gender expression.13
Transgendered students should feel comfortable seeking assistance from teachers and other school staff. And, educators have a responsibility to take appropriate measures pursuant to the Ontario Provincial Code of Conduct to prevent and address bullying.14
School boards may wish to consider drafting guidelines to address the day-to-day needs of transgendered students. The Toronto District School Board has guidelines that outline students’ rights and provide suggestions for their implementation in schools. Topics covered in the guidelines include confidentiality, addressing transgendered students (names/ pronouns), access to washrooms, dress codes, participation in school sports and physical education, and integrating trans-positive content into the curriculum.15
Addressing the issues facing transgendered students in schools can be challenging and will require a delicate balancing of the rights and interests of all members of the school community. Nonetheless, all students, parents, teachers and other school staff have the right to be safe, and feel safe, in the school community.