CSBA recently received questions regarding the obligations of school districts under California’s Gender Recognition Act (Senate Bill 179), as it may impact the designation of a student’s gender in student records maintained by local educational agencies. In response, board members were directed to the guidance issued in 2019 by the California Department of Education relative to the designation of a student’s gender in the California Longitudinal Pupil Achievement Data System (CALPADS), and its 2016 guidance regarding how LEAs should respond to student requests to change their gender identity in their student records.

Effective Sept. 1, 2018, the Gender Recognition Act added “nonbinary” as a gender designation that may be recorded on several identity documents including California driver’s licenses, identification cards and birth certificates. The Gender Recognition Act found that “[t]he binary gender designations of female and male fail to adequately represent the diversity of human experience.” The act described the term “nonbinary” as “an umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male.”

To address this change, CDE issued an update in July 2019 explaining that CALPADS, which collects student data pursuant to state and federal reporting requirements, had been revised to accept, in addition to male and female, nonbinary as a third gender designation. The guidance advised LEAs on procedures for changing a student’s gender in CALPADS.

To report a student’s gender in CALPADS, CDE directs LEAs to report the current gender they have recorded for each student on the mandatory permanent student record (official record). LEAs are required to maintain an official record for each student that includes the student’s legal name, date of birth and sex, among other information. (See, 5 C.C.R. § 432.) LEAs are also required to report gender information to other state and federal agencies.

CDE’s 2019 guidance notes that LEAs may initially rely on enrollment/registration-related forms and documentation to record a student’s gender. When a school district later receives official documentation of a change in a student’s gender identity, the district must update the student’s official records accordingly. While the Gender Recognition Act provides a process to update gender on certain state-issued identification documents, the act does not deal with student records. According to CDE, for purposes of initially recording or updating a student’s gender in official records, LEAs need not require that the student and/or the student’s parent(s)/guardian(s) present such state-issued documents to establish what they assert as the student’s gender. The process for updating a student’s gender in the official records is distinguished by CDE from the process for changing a student’s legal name, which LEAs may only change if they receive legal documentation of a name change. (See 5 CCR § 432.).

State anti-discrimination laws protecting students have largely remained unchanged since Assembly Bill 1266 was signed into law in 2013. AB 1266 amended Education Code section 221.5 to clarify that students must be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and the use of school facilities consistent with their gender identity, regardless of the gender listed on their student records. California and federal law both require schools to provide students equal opportunity and access to a school’s facilities, activities and programs in a manner that is consistent with each student’s gender identity, regardless of whether the student’s gender identity matches the student’s assigned sex at birth.

AB 1266 included various requirements on schools to help facilitate a safe, supportive and inclusive learning environment that protects the rights of all students, which are incorporated into CSBA’s model Board Policy and Administrative Regulation 5145.3. After the passage of AB 1266, CDE issued FAQs that addressed the privacy rights of students regarding information about their gender. CDE advises that a district should accept and respect a student’s assertion of their gender identity where the student expresses that identity at school or where there is other evidence that this is a sincerely held part of the student’s core identity. Except in limited circumstances, students may keep their gender private, including from parents and families, based on their right to privacy under the California Constitution, Article I, Section 1, as well as AB 1266 and other anti-discrimination laws.

More recently, the U.S. Department of Education’s Office for Civil Rights issued a legal memorandum explaining that it interprets Title IX’s prohibition on discrimination “on the basis of sex” to encompass discrimination based on sexual orientation and gender identity. Thereafter, CDE updated its legal advisory regarding application of California’s antidiscrimination statutes to transgender students and provided LEAs with additional guidance on the minimum requirements for compliance with California’s prohibition on gender identity discrimination. Despite these recent guidances, board members should note that California law has prohibited discrimination of students based on gender, gender identity and gender expression for many years, and CDE’s guidance regarding the Gender Recognition Act and its application to CALPADS does not represent any change in anti-discrimination law or in CDE’s approach to implementing the law.

Read together, these CDE guidances specify when documentation is required to change a student’s legal name on a student’s official records and when documentation is not required to change a student’s gender on official records. Further, regardless of the involvement of a parent/guardian, by law since a school must accept a student’s preferred name and asserted gender, a student’s request to change their name or gender must be honored by the school on the student’s unofficial records such as attendance sheets, school IDs and report cards, even without any documentation.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.