Under state law, public schools and non-religious private schools that receive state funding,
have a legal duty to protect students from discrimination and harassment on the basis of
actual and perceived sexual orientation or gender identity, or on the basis of association with
a person with one or more of these actual or perceived characteristics. Student Safety and
Violence Prevention Act of 2000 (AB 537); California Education Code §§ 200-220. The
Department of Education regulations implementing this law state that:
[N]o person...shall be subjected to discrimination, or any form of illegal bias, including
harassment. No person shall be excluded from participation in or denied the benefits of
any [school] program or activity on the basis of sex, sexual orientation, gender, ethnic
group identification, race, ancestry, national origin, religion, color, or mental or physical
disability. Title 5, California Code of Regulations, § 4900(a).
The law defines “gender” very broadly:
“Gender” means sex, and includes a person’s gender identity and gender related
appearance and behavior whether or not stereotypically associated with the person’s
assigned sex at birth. Cal. Penal Code § 422.56(c); see also Cal. Educ. Code §§ 200, 220
(cross referencing Cal. Penal Code § 422.56).
For more information about AB 537, see http://www.cde.ca.gov/re/lr/sv/index.asp.
All students also have constitutional rights to equal protection under the law, and are
protected under Title IX of the federal Education Amendment Acts of 1972 from sex
discrimination in educational programs that receive federal funds. Schools must protect
lesbian, gay, bisexual, and transgender (LGBT) students and those perceived to be LGBT
from harassment, just as they must protect students from harassment on the basis of race,
religion, sex, and other characteristics. Schools cannot ignore harassment on the basis that
LGBT students should expect to be harassed, or have brought the harassment upon
themselves by being open about their sexual orientation or gender identity.
Also, students have constitutional rights to freedom of expression, including the right to be
open about their sexual orientation and gender identity.
Examples of unlawful discrimination include: refusing to allow a same-sex couple to attend
the school prom; treating displays of affection by same-sex couples differently than displays
of affection by different-sex couples; and refusing to allow a student to wear clothing that is
consistent with the student’s gender identity.
Examples of harassment include name-calling, threats or violence based on a student’s actual
or perceived sexual orientation or gender identity.