Law & Courts

Calif. Board Splits Over Gender Identification

By Mary Ann Zehr — March 24, 2004 3 min read

Three school board members in a California elementary school district have touched off a firestorm by refusing to change their district’s anti-discrimination policy to comply with state law.

The debate in the 10,000-student Westminster district in Orange County centers on how students—particularly those who consider themselves transgender— identify their gender, and the district’s role in acknowledging such identifications.

As a result of the three board members’ position, the district ultimately could lose millions of dollars in funding, school officials say.

The conflict started in February, when district officials asked the Westminster school board to add the word “sex” to a policy outlining grounds and procedures for people to file discrimination complaints against the district. The board, however, voted 3-2 against the change.

Under the existing policy, the district recognizes complaints of unlawful discrimination based on “ethnic group identification, religion, age, gender, color, or physical or mental disability.”

According to the opponents of the proposed change, the addition of “sex” to a policy that already includes “gender” has implications they find deeply troubling.

Judy A. Ahrens, who voted against the change, said: “The problem is that if we are going to include the word ‘sex’ now, then ‘gender’ takes on a different connotation. ... ‘Gender’ will be not only your biological sex, but your perceived sex.”

Voting for a policy that implies that one’s sex can be perceived to be something other than what it is biologically is against her religious morals, Ms. Ahrens said, her voice cracking with emotion in a telephone interview last week.

But Jo-Ann W. Purcell, one of the two board members who voted to change the policy, said it was “unconscionable” that board members were refusing to do what is required by law. “I don’t think it’s setting a very good example to go against the law and risk all the monies that we need to educate our students,” she said.

One of the laws at issue is the California Student Safety and Violence Prevention Act of 2000, which is intended to protect students from discrimination based on other persons’ perceptions of whether they conform to traditional conventions of maleness or femaleness.

Funding at Risk

Since the Feb. 5 vote, the California Department of Education has conducted a compliance review of the district and made it clear that it could lose funding if the board doesn’t reverse its vote, according to district spokeswoman Trish Montgomery.

Ms. Montgomery said that after that initial vote, the state education official who is monitoring the district clarified that the district must add not only “sex” to the list of legal areas for discrimination complaints, but also “sexual orientation,” “race,” and “ancestry.” In a special board meeting on Feb. 26, the board opposed making those changes.

The school board will discuss the issue again April 1, and it has been given at least until April 12 to change the policy without suffering any consequences.

The district simply can’t afford not to comply with the law, Ms. Montgomery said. “How much money we would lose is speculation, but it is not speculation that $40 million of state and federal funding is at risk.” The district’s current budget is $70 million.

Ms. Montgomery contends that federal funds could be affected as well as state funds because the state allocates much of the federal money. National experts acknowledge that the legal language used to protect people from sexual harassment or discrimination is evolving and can be confusing.

“Sex” has been the most commonly used term in anti-discrimination policies in the past, said Eliza S. Byard, the deputy executive director of the Gay, Lesbian, and Straight Education Network, or GLSEN, an advocacy group based in New York City. While “sex” and “gender” have sometimes been used interchangeably, she said, “sex” usually refers to one’s biological sex, while “gender” refers to one’s expression of maleness or femaleness.

The California education department did not respond to a request for an interview last week.

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