In the November 2021 edition of California School News, CSBA’s Legal Department provided information regarding local educational agencies’ obligations under California’s Gender Recognition Act, which added “nonbinary” as a gender designation that may be recorded on California identification documents. That article focused specifically on the designation of a student’s gender in student records using the California Longitudinal Pupil Achievement Data System (CALPADS) and aimed to assist LEAs as they navigated guidance from the California Department of Education on the subject.
Since then, CDE has not issued any further guidance related to gender designations or gender-neutral language and no new laws have impacted the guidance previously given by both CSBA and CDE. However, the topic of gender-neutral language continues to be relevant and it is an evolving area of law and policy.
For example, the National Education Association’s (NEA) Representative Assembly included a proposal on the agenda at its annual meeting in July to change certain language used in its union contracts. The new language was meant to be more neutral and included using “birthing-person” instead of mother, “non-birthing person” instead of father, and “paternity leave” instead of maternity leave. Ultimately, NEA’s Representative Assembly did not act on the proposal but NEA’s decision to place it on the agenda signals the ongoing relevance and permanence of the questions that gender-neutral language presents.
To navigate this evolution of language and take proper actions for legal compliance, an understanding of the guidance issued by various state and federal agencies on the topics of gender identity generally and gender-neutral language specifically is beneficial. Currently, the majority of guidance in this area relates to transgender individuals and clarifies pronoun use. There is little guidance related to other areas of gender-neutral language, such as parental roles.
The guidance from these agencies emphasizes that requests by a student or an employee for use of specific pronouns or other gender-related language should be followed to comply with both state and federal nondiscrimination laws.
Current law
Also in 2021, the Office for Civil Rights (OCR) within the United States Department of Education issued a “Notice of Interpretation” related to Title IX, the federal civil rights law that protects against sex discrimination in educational institutions that receive federal funding. The notice explained that Title IX’s protections against sex discrimination includes discrimination based on gender identity. OCR’s recently issued notice of proposed rulemaking related to Title IX in part proposes to incorporate the Notice of Interpretation into the federal regulations by explicitly stating that discrimination based on gender identity is illegal under Title IX.
The public comment period for the proposed rule concluded on Sept. 12. After reviewing the comments, OCR will determine its next steps, which will likely include drafting the final rule. A final rule will take effect no earlier than 30 days after it is published in the Federal Register. However, even if the proposed rule does not become a final rule/regulation, OCR’s 2021 interpretation that “sex” includes gender identity will still apply to schools that receive federal funding. For more information on the topic of student gender protections, see the recently updated “Legal Guidance on Rights of Transgender and Gender Nonconforming Students in Schools” from CSBA.
Similarly, based on both state and federal law and guidance, CSBA Administrative Regulation 5145.3 – Nondiscrimination/Harassment, was updated in 2021 to clearly describe the rights of transgender and gender nonconforming students. It states that LEAs should prohibit “acts of verbal, nonverbal, or physical aggression, intimidation, or hostility that are based on sex, gender identity, or gender expression, or that have the purpose or effect of producing a negative impact on the student’s academic performance or of creating an intimidating, hostile, or offensive educational environment, regardless of whether the acts are sexual in nature.” Included within these prohibited acts is deliberately using incorrect language, such as improper pronouns, when referring to a student.
Related to LEA employees, both the Equal Opportunity Employment Commission (EEOC) and California’s Civil Rights Department (CRD) require employers to use language that aligns with employees’ gender identity. The EEOC’s website has a specific page (bit.ly/3qPk8I9) dedicated to the impact of the 2020 U.S. Supreme Court decision in Bostock v. Clayton County regarding the protection of transgender employees. In Bostock, the Supreme Court ruled that firing an individual because of their sexual orientation or transgender status violates Title VII, which, like Title IX, prohibits discrimination based on sex. In describing the impact of Bostock, the page offers two examples related to language choices:
- “If an employer fires an employee because that person was identified as male at birth but uses feminine pronouns and identifies as a female, the employer is taking action against the individual because of sex since the action would not have been taken but for the fact the employee was originally identified as male.”
- “Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
As for California, section 11034 of title 2 of the California Code of Regulations states, “If an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act.”
The guidance from each of these agencies emphasizes that requests by a student or an employee for use of specific pronouns or other gender-related language (i.e., titles such as Mr. or Mrs.), should be followed to comply with both state and federal nondiscrimination laws. The laws do not require schools to exclusively use gender-neutral language in all situations and they do not require students to change their pronouns. Instead, the purpose of these laws is to eliminate discrimination based on sex and help create inclusive environments for all students.
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, or CSBA’s District and County Office of Education Legal Services, for legal questions related to this information.