Administrative Regulation on Nondiscrimination/Harassment - Intersex, Nonbinary, Transgender, and Gender Nonconforming Students AR 5145.4

This Administrative Regulation applies to the San Francisco Unified School District and the County Office of Education.

This regulation is meant to advise school site staff and administration regarding intersex, nonbinary, transgender, and gender non-conforming student concerns in order to create a safe learning environment for all students, and to ensure that every student has equal access to all components of their educational program. Board Policy 5145.3 requires District schools shall be free from unlawful discrimination, including discriminatory harassment, intimidation, and bullying based on “sex, sexual orientation, gender, gender identity, or gender expression or association with a person or group with one or more of these actual or perceived characteristics.” In accordance with Board Policy, intersex, transgender, gender nonconforming and nonbinary students must be protected from discrimination and harassment in the public school system.

California Law

The California Education Code states that “all pupils have the right to participate fully in the educational process, free from discrimination and harassment.” Cal. Ed. Code Section 201(a). Section 220 of the Education Code provides that no person shall be subject to discrimination on the basis of gender in any program or activity conducted by an educational institution that receives or benefits from state financial assistance. The Code further provides that public schools have an affirmative obligation to combat sexism and other forms of bias, and a responsibility to provide equal educational opportunity to all pupils. Cal. Ed. Code Section 201(b).

California Education Code Section 221.5(f) specifically requires that “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with [their] gender identity, irrespective of the gender listed on the pupil’s records.”

The California Code of Regulations similarly provides that “No person shall be excluded from participation in or denied the benefits of any local agency's 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 in any program or activity conducted by an ‘educational institution’ or any other ‘local agency’. . .that receives or benefits from any state financial assistance." (5 CCR Section 4900(a))

Definitions

1. Gender: Gender is defined as “a person's actual sex or perceived sex and includes a person's perceived identity, appearance or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with a person's sex at birth.” (5 CCR Section 4910(k))
2. Gender Expression: Gender expression means a student's gender-related appearance and behavior, whether stereotypically associated with the student's assigned sex at birth. (Education Code 210.7)
3. Gender Identity: Gender identity of a student means the student's gender-related identity, appearance, or behavior as determined from the student's internal sense of their gender, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the student's physiology or assigned sex at birth.
4. Gender-Nonconforming: Gender non-conforming student means a student whose gender expression differs from stereotypical expectations.
5. Gender Transition: Gender transition refers to the process in which a student changes from living and identifying as the sex assigned to the student at birth to living and identifying as the sex that corresponds to the student’s gender identity. 
6. Intersex: Intersex student means a student with natural bodily variations in anatomy, hormones, chromosomes, and other traits that differ from expectations generally associated with female and male bodies.
7. Transgender: Transgender student means a student whose gender identity is different from the student's assigned sex at birth.
8. Nonbinary:Nonbinary student means a student whose gender identity falls outside of the traditional conception of strictly either female or male, regardless of whether or not the student identifies as transgender, was born with intersex traits, uses gender-neutral pronouns, or uses agender, genderqueer, pangender, gender nonconforming, gender variant, or such other more specific term to describe their gender.   

Discrimination and Harassment

Federal and State law, as well as Board Policy, require the District to provide students with a learning environment that is free from discrimination or harassment on the basis of sex, gender identity, or gender expression. Staff are required to respond appropriately to harassing and discriminatory conduct. Conduct is discriminatory, even if it is not sexual in nature, where the conduct has the purpose or effect of having a negative impact on the student's academic performance or of creating an intimidating, hostile, or offensive educational environment. Discriminatory conduct includes verbal and nonverbal conduct, physical aggression, intimidation or hostility. 

Examples of prohibited conduct which may constitute gender-based harassment include, but are not limited to:

1. Refusing to address a student by a name and the pronouns consistent with their gender identity
2. Disciplining or disparaging astudent or excluding the student from participating in activities, for behavior or appearance, that is consistent with the student’s gender identity or that does not conform to stereotypical notions of masculinity or femininity as applicable.
3. Blocking a student's entry to the restroom or locker room that corresponds to their gender identity
4. Taunting a student because they participate in an athletic activity that does not conform to stereotypical notations of the student's gender identity 
5. Revealing a student's  gender identity to individuals who do not have a legitimate educational interest for the information, without the student's consent.
6. Use of gender-specific slurs
7. Physical assault of a student motivated by hostility toward the student because of their gender, gender identity, or gender expression.

How to File a Complaint
The District's Uniform Complaint procedures (AR 1312.3) or Title IX sexual harassment procedures (AR 5145.7) shall be used to report and resolve complaints alleging discrimination against intersex, nonbinary, transgender and gender-nonconforming students. Examples of bases for complaints include, but are not limited to, the above list as well as improper rejection by the District of a student's asserted gender identity, denial of access to facilities that correspond with a student's gender identity, improper disclosure of a student's gender identity, discriminatory enforcement of a dress code, and other instances of gender-based harassment and discrimination. The District designates the individual(s) identified below as the employee(s) responsible for coordinating the District's efforts to comply with state and federal civil rights laws, including Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and the Age Discrimination Act of 1975, and to answer inquiries regarding the District's nondiscrimination policies.

The coordinator/compliance officer(s) may be contacted at:

Director of the Office of Equity/Title IX Coordinator

555 Franklin Street, 3rd Floor

Telephone: (415) 355-7334

Fax: (415) 355-7333

Email: equity@sfusd.edu

LGBTQ Student Services may be contacted at:

Student Family School Resource Link Line

Student & Family Services Division

Telephone: (415) 340-1716

Email: sflink@sfusd.edu

To ensure that intersex, nonbinary, transgender and gender-nonconforming students are afforded the same rights, benefits, and protections provided to all students by law and Board policy, the District shall address each situation on a case-by-case basis, in accordance with the following guidelines:

Right to Privacy

A student's intersex, nonbinary, transgender or gender-nonconforming status is their private information and the District will only disclose the information to others with the student's prior written consent, except when the disclosure is otherwise required by law or when the District has compelling evidence that disclosure is necessary to preserve the student's physical or mental well-being. In any case, the district shall only allow disclosure of a student's personally identifiable information to employees with a legitimate educational interest as determined by the district pursuant to 34 CFR 99.31. Such strategies may include, but are not limited to, collecting or maintaining information about student gender only when relevant to the educational program or activity, protecting or revealing a student’s gender identity as necessary to protect the health or safety of the student, and keeping a student’s unofficial record separate from the official record.

Any District employee to whom a student's intersex, nonbinary, transgender or gender-nonconforming status is disclosed shall keep the student's information confidential.  If the student expresses interest in seeking more services, or has questions or concerns the staff member can also suggest that the student speak with either School Social Worker and/or LGBTQ Student Services at Student & Family Services Division directly. If the student states that their needs as an intersex, nonbinary, transgender, or gender conforming student are not being met, then the staff should contact LGBTQ Student Services at the Student Family School Resource Link Line for additional support within three school days. When disclosure of a student’s gender identity is made to a district employee by a student, and where the student alleges their needs are not being met, the employee shall seek the student’s permission to notify the compliance officer.  If the student refuses to give permission, the employee shall keep the student's information confidential, unless they are required to disclose or report the student's information pursuant to this procedure, and shall inform the student that honoring the student's request may limit the District's ability to meet the student's needs related to the student’s status as an intersex, nonbinary, transgender or gender-nonconforming student. If the student permits the employee to notify the compliance officer, the employee shall do so within three school days. 

As appropriate given the student's need for support , the compliance officer may discuss with the student any need to disclose the student’s intersex, nonbinary, transgender, or gender-nonconformity status or gender expression or gender identity to the School Social Worker and/or LGBTQ Student Services at Student & Family Services Division. the student's parents/guardians and/or others, including other students, teacher(s), or other adults on campus. The District shall offer support services, such as counseling, to students who wish to inform their parents/guardians of their status and desire assistance in doing so.

Determining a Student's Gender Identity

The compliance officer shall accept the student's assertion of gender identity and begin to treat the student consistent with that gender identity unless District personnel present a credible and supportable basis for believing that the student's assertion is for an improper purpose.

Addressing a Student's Transition Needs
Upon request, LGBTQ Student Services at the Student & Family Services Division shall arrange a meeting with the student and, if appropriate, their parents/guardians to identify and develop strategies ensuring that the student’s access to educational programs and activities is maintained .. The meeting shall discuss the intersex, nonbinary, transgender or gender-nonconforming student's rights and how those rights may affect and be affected by the rights of other students and shall address specific subjects related to the student's access to facilities and to academic or educational support programs, services, or activities, including, but not limited to, sports and other competitive endeavors. In addition, LGBTQ Student Services at the Student & Family Services Division shall identify specific school site employee(s) to whom the student may report any problem related to their status as an intersex, nonbinary, transgender or gender-nonconforming individual, so that prompt action can be taken to address it. Alternatively, if appropriate and desired by the student, the school may form a support team for the student that will meet periodically to assess whether the student's arrangements are meeting their educational needs and providing equal access to programs and activities, educate appropriate staff about the student's transition, and serve as a resource to the student to better protect the student from gender-based discrimination.

Names/Pronouns

Students shall have the right to be addressed by a name and pronoun corresponding to their gender identity as expressed by the student and asserted at school. Students are not required to obtain a court ordered name and/or gender change or to change their official records as a prerequisite to being addressed by the name and pronoun that corresponds to their gender identity. This directive does not prohibit inadvertent slips or honest mistakes, but it does apply to an intentional and persistent refusal to respect a student’s gender identity. The requested name shall be included in the District’s electronic database in addition to the student’s legal name, in order to inform teachers of the name and pronoun to use when addressing the student.

Official Records

Upon each student's enrollment, the District is required to maintain a mandatory permanent pupil record (official record) which includes the legal name of the pupil, as well as the pupil’s gender. A student's legal name or gender as entered on the mandatory student record required pursuant to 5 CCR 432 shall only be changed with proper documentation. When a student presents government-issued documentation of name and/or gender change or submits a request for a name and/or gender change through the process specified in Education Code 48070, the District will update the student's records.  In addition, the District will provide recognition and equal treatment under the law to all students by ensuring that intersex, transgender, gender nonconforming, and nonbinary students have full recognition of their accurate gender identity included as part of their student record. A student’s gender as entered on the student’s official record required pursuant to 5 CCR 432 shall only be changed with written authorization of a parent/guardian having legal custody of the student.  (Education Code 49061)

Dress Codes

School sites may enforce dress codes that are adopted pursuant to Education Code 35291. Students shall have the right to dress in accordance with their gender identity as expressed by the student and asserted at school, within the constraints of the dress codes adopted at their school site. This regulation does not limit a student’s right to dress in accordance with the Dress/Appearance standards articulated in the Student and Parent/Guardian Handbook.

In accordance with Board of Education Resolution # 165-24A2, school dress codes shall be gender neutral and gender-neutral dress codes shall apply to regular school days as well as any special events, such as graduation ceremonies and prom.

Accessibility to Sex-Segregated Facilities, Programs, and Activities  

As described in greater detail below, the District may maintain sex-segregated facilities, such as restrooms and locker rooms, and sex-segregated programs and activities, such as physical education classes, intramural sports, and interscholastic athletic programs.  A student shall be entitled to access facilities and participate in programs and activities consistent with their gender identity. If available and requested by any student, regardless of the underlying reason, the District shall offer options to address privacy concerns in sex-segregated facilities, such as a gender-neutral or single-stall restroom or changing area, a bathroom stall with a door, an area in the locker room separated by a curtain or screen, access to a staff member's office, or use of the locker room before or after the other students. However, the District shall not require a student to utilize these options because they are intersex, nonbinary, transgender or gender-nonconforming. In addition, a student shall be permitted to participate in accordance with the student’s gender identity in other circumstances where students are separated by gender, such as for class discussions, yearbook pictures, and field trips. A student's right to participate in a sex-segregated activity in accordance with the student’s gender identity shall not render invalid or inapplicable any other eligibility rule established for participation in the activity.

Restroom Accessibility

Students shall have access to the restroom that corresponds to their gender identity as expressed by the student and asserted at school. Where available, a single-stall restroom may be used by any student who desires increased privacy, regardless of the underlying reason. The use of such a single-stall restroom shall be a matter of choice for a student, and no student shall be compelled to use such restroom.

In accordance with Board of Education Resolution # 165-24A2, schools shall designate at least one restroom to be all gender/gender neutral for student access at every school; and all single stall restrooms on school campuses and administrative buildings be labeled with appropriate signage as "all gender" restrooms.

When schools undergo construction, renovation or modernization, the District will prioritize building single stall and multi-stall all-gender restrooms, where none are currently accessible to students; and all new schools and administrative buildings will include all gender restrooms.

Locker Rooms or Other Facilities

Transgender, non-conforming students shall have access to use facilities consistent with their gender identity as expressed by the student and asserted at school, irrespective of the gender listed on the pupil’s records, including but not limited to locker rooms. Where available, accommodations may be used by any student who desires increased privacy, regardless of the underlying reason. The use of such accommodations shall be a matter of choice for a student, and no student shall be compelled to use such accommodations. Based on availability and appropriateness to address privacy concerns, such accommodations could include, but are not limited to:

• Use of a private area in the public area (i.e., a restroom stall with a door, an area separated by a curtain, a PE instructor’s office in the locker room);
• A separate changing schedule (either utilizing the locker room before or after other students); or
• Use of a nearby private area (i.e., a nearby restroom, a nurse’s office).

Sports and Gym Class

Transgender and gender non-conforming students shall not be denied the opportunity to participate in physical education, nor shall they be forced to have physical education outside of the assigned class time. Transgender and non-binary students shall be permitted to participate in gender-segregated recreational gym class activities, athletic teams and competitions in accordance with the student’s gender identity as expressed by the student and asserted at school.

Transgender and gender non-conforming students participating in sporting events at SFUSD schools that are away from their home school (or school of origin) should be offered the use of a separate changing room, private area, or other gender inclusive accommodations, based on availability, irrespective of the gender listed on the pupil's records, including but not limited to locker rooms. Coaches and any other relevant staff members should make reasonable efforts to secure access to inclusive facilities for transgender and gender non-conforming student athletes at non-SFUSD away games.

Gender Segregation in Other Areas

As a general rule, in any other circumstances where students are separated by gender in school activities or programs (i.e., class discussions, field trips), students shall be permitted to participate in accordance with their gender identity as expressed by the student and asserted at school. Activities that may involve the need for accommodations to address student privacy concerns will be addressed on a case by case basis. In such circumstances, staff shall make a reasonable effort to provide an available accommodation that can address any such concerns.

In accordance with Board of Education Resolution # 165-24A2, the District encourages teachers, staff and contractors (i.e. Community-Based Organizations, consultants, etc) to eliminate gender segregation in classroom and program practices or activities that differentiate students based on gender as it appears arbitrarily or does not serve a legitimate educational purpose.

Additionally, in accordance with Board of Education Resolution #2111-9A1, the District directs staff to continue efforts to bring all parent/caregiver and student forms, when possible, and communiques into alignment with state law regarding legal gender markers as well as SFUSD inclusive language protocols.