Democratic Governor Jerry Brown signed Assembly Bill 1266 to permits “(a) pupil … 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.” The legislation, which goes into effect January 1, 2014, completely guts the Sex Equity in Education Act, which guaranteed equal participation in sex-segregated activities for girls. With this legislation, a boy can participate in any and all activities – and use any and all facilities designated for girls – by simply declaring that he “identifies as a girl.”
In addition to violating the privacy rights of girls guaranteed in the California Constitution, gender identity legislation has managed to eviscerate what progress was made for girls, as the Attorney of General of California had previously upheld sex-segregated activities for girls in 60 Ops. Cal. Atty. Gen. 326 to remediate past (and current) discrimination done to girls. Specifically:
“As regards the second part of the question, past discrimination against girls in high school athletic programs has been demonstrated and acknowledged by those responsible for it. See discussion, supra at p. 7. It has also been demonstrated that allowing boys to compete for girls’ teams solely on the basis that their school does not offer comparable boys’ teams would have the practical effect of tending to destroy or seriously impair the girls’ program in that sport. See discussion, supra p. 7. Thus, to the extent that Bylaw 200 might be construed to constitute reverse discrimination against boys, C.I.F. has demonstrated that the only feasible method of providing equal athletic opportunities for girls is to sharply restrict the opportunities for boys to compete on girls’ teams.
In light of the above analysis, we conclude that the result under California law, which would require the application of the strict scrutiny test to these facts would be identical to the result in applying the modified test of the federal court system, and that under California law Bylaw 200 would not be unconstitutional solely because it provides special opportunities for girls that are not identical to those provided for boys.”
With regard to the violation of privacy, a California court previously held in In Re Long that the presence of female guards in a dormitory for male juvenile delinquents violated those males’ right to privacy:
“Here too, we confront a noncommunicative variety of the multifarious assertions within the privacy rubric. Here the claim is one of injured self-esteem, humiliation and embarrassment arising out of the enforced nudity and conduct of bodily functions within the perceptive range of members of the opposite sex…. In a normal social setting young men of 19 do not undress, bathe, void or excrete in the maternal presence. They are forced to disrobe in the bathroom to escape female surveillance. Far from normalizing the environment, the presence of female observes in these areas of the institution violates the norms of privacy prevailing in free society. The department has offered no justification for the violation.”
We remain hopeful that litigation will ensue to determine if gender identity should trump sex.