A first-of-its-kind law in California that allows transgender students to use facilities and join programs based on their gender identity is already facing challenges, less than a week after it took effect.
About a week after Gov. Jerry Brown signed the Student Success and Opportunity Act – which took effect Jan. 1, 2014 – opponents launched a petition to get a referendum to overturn the legislation on the November ballot. The group, Privacy for All Students, says the law is not necessary to protect students from bullying (as proponents argue) because California law already bans discrimination against transgender students.
Although Secretary of State Debra Bowen refused to count about 5,000 petition signatures in November, saying they were not submitted on time, a judge ruled Thursday that the state must count those signatures. Judge Allen Sumner said because the Nov. 10 deadline fell on a weekend before a holiday, petitions received on Veterans Day should still be counted.
"Ever since the voters enacted the referendum power in 1911, courts have liberally construed its provisions to protect the voters' power," Sumner wrote. "The fact the deadline for submitting petitions falls on a weekend preceding a holiday, or the county registrar closes a noon on Friday, should not prevent Petitioner from having her petition signatures accepted."
If the petitioners gather roughly 505,000 verified signatures by Jan. 8, the law would be suspended and voted on in November. Privacy for All Students did not immediately respond to a request for comment.
Opponents of the law have said allowing students to use facilities and participate in programs based on the gender they identify with, rather than their biological gender, is a privacy issue for other students.
Brad Dacus, president of the Pacific Justice Institute, a legal defense organization in opposition to the legislation, said in an October statement that it is a "crippling blow to our constitutional freedoms."
"We're not going to stand by and let 99.7 percent of our students lose their privacy and free speech rights just because 0.3 percent of the population are gender-confused," Dacus said. "LGBT activists are sacrificing the safety and sanity of our schools to push an extreme political agenda."
But those supporting the new provisions say existing anti-discrimination policies were not conscious enough of students' rights, and that transgender students were being funneled into classes and programs based on their sex.
"This law was a really important clarification of the protections that transgender students have and a very important way of ensuring that schools follow through to make sure every student has full access to the benefits every young person should receive, being in school in California," says Eliza Byard, executive director of the Gay, Lesbian & Straight Education Network.
According to a 2011 school climate survey from GLSEN, 80 percent of transgender students said they felt unsafe at school and 75 percent said they were "frequently," "often," or "sometimes" verbally harassed because of their gender identity. Additionally, 32 percent said they were frequently, often or sometimes physically harassed, and nearly 17 percent said the same of being physically assaulted.
And in a 2009 GLSEN survey focused on the plight of transgender students, about half said their school had an anti-harassment policy, but just one-quarter said that policy included specific protections based on sexual orientation, gender identity, or gender expression.
The "real danger" to students, according to Byard, is the recall effort, which she says is a way for opponents to "drum up a sense of panic about these young people who simply want to go to school."
"These are students who have the support of their parents in trying to live their lives safely, honestly and as who they are. So the kind of fabrications that have been thrown out there are hurtful, disingenuous and misleading," Byard says. "We're in a place now where it is possible the recall effort will fail. And for the health and safety of transgender people in California, I hope that it does."