LGBTQIA+ Youth

Are there any laws regarding instruction about LGBTQIA+ individuals or topics?

Under California Education Code section 51204.5, part of the Fair, Accurate, Inclusive and Respectful (FAIR) Education Act, “instruction in social sciences shall include the early history of California and a study of the role and contributions of both men and women, Native Americans, African Americans, Mexican Americans, Asian Americans, Pacific Islanders, European Americans, lesbian, gay, bisexual, and transgender Americans, persons with disabilities, and members of other ethnic and cultural groups, to the economic, political, and social development of California and the United States of America, with particular emphasis on portraying the role of these groups in contemporary society.”

Another law, the California Healthy Youth Act, requires school districts in California to provide students with comprehensive sexual health education, along with information about HIV prevention, at least once in high school and once in middle school. 

Is talking about LGBTQIA+ issues the same as sex education?

No. Talking about LGBTQIA+ issues involves discussions about people and families present in our communities and addressing bias-based bullying. None of these topics include instruction or discussions about sex or human reproduction.  The focus of LGBTQIA+-inclusive education is to create respectful and welcoming learning environments for all children by communicating that LGBTQIA+ people are part of our communities and that LGBTQIA+ discrimination is harmful to everyone.

Can parents opt out of sex education? 

Parents have the right to receive notice about and opt their children out of certain instruction in public schools, including the following:  comprehensive sexual health education, HIV/AIDS prevention, and surveys, tests, research, and evaluation. Specially in this context, parents may opt out of comprehensive sex education lessons covered by the California Healthy Youth Act. 

The opt-out provision of the California Healthy Youth Act does not apply to instruction or materials outside the context of comprehensive sexual health education, including instruction or materials covered by the FAIR Education Act, and instruction or materials that may reference gender, gender identity, sexual orientation, discrimination, bullying, relationships, or family. 

Must schools notify parents/guardians if LGBTQIA+ people or concerns are discussed in the classroom? Can parents opt out of instruction regarding LGBTQIA+ Americans?

Typically, school districts and charter schools are not required to notify parents and guardians about lessons on respect and diversity. In fact, many federal and state laws require schools to be proactive in addressing bias and prejudice and ensuring students' safety. The California Healthy Youth Act states that "schools must affirmatively recognize different sexual orientations, be inclusive of same-sex relationships in discussions, teach about gender, gender expression, gender identity, and the harm of negative gender stereotypes, etc."

The opt-out provision of the California Healthy Youth Act does not apply to instruction or materials outside the context of comprehensive sexual health education, including instruction or materials covered by the FAIR Education Act, and instruction or materials that may reference gender, gender identity, sexual orientation, discrimination, bullying, relationships, or family.

How are books chosen for the school library? Is there a policy for books with LGBTQIA+ themes? 

Each school district and charter school has its own selection and collection development policy, which is approved by the governing board. Contact your district or school for information on specific practices and policies.

How are instructional materials selected for use in classrooms? 

In general, instructional materials must be adopted by the State Board of Education and/or a district’s own school board. This requirement applies to all instructional materials, not just those that pertain to sexuality. Under the California State Constitution, Article IX, Section 7.5, “The State Board of Education shall adopt textbooks for use in grades one through eight throughout the State, to be furnished without cost as provided by statute.” For kindergarten and grades 1-8, the State Board of Education shall adopt instructional materials in accordance with California Education Code section 60200. Under California Education Code section 60210, school districts may also use instructional materials that are aligned with the academic content standards, including those that have not been adopted by the State Board of Education, if the district ensures that a majority of the participants of any review process are classroom teachers who are assigned to the subject area or grade level of the materials. For grades 9-12, the governing board of each school district must adopt instructional materials for use under California Education Code section 60400. 

On June 1, 2023, the governor, California attorney general, and state superintendent of public instruction released joint guidance for school superintendents, administrators, and principals addressing educational rights and requests to remove instructional materials from schools.

For more information, view the California Department of Education’s FAQ on instructional materials.

What bathroom may transgender students use?

Under California Education Code section 221.5, also known as the School Success and Opportunity Act, a student has the right to use facilities consistent with the student’s gender identity, irrespective of the gender listed on the student’s records. A student may also be offered the option to use of a single-stall/all-gender restroom; however, they cannot be required to use a single-stall/all-gender restroom. 

Why does my school have tampons/pads in the boy’s bathroom?

Under California Education Code section 35292.6, by the start of the 2022-23 school year, public schools in California serving grades 6-12 must stock the school’s restrooms at all times with an adequate supply of menstrual products, available and accessible, free of cost, in all women’s restrooms and all-gender restrooms, and in at least one men’s restroom. More information is available on SDCOE's Menstrual Equity Resource webpage. 
 

Can a local educational agency (LEA) fly a pride flag? 

Yes. An LEA can choose which flags it flies. The United States Supreme Court continues to rule that when a governmental entity speaks for itself, it is not required to give “airtime for all views.” In Shurtleff v. City of Boston, decided May 2, 2022, the city had a “come-one-come-all attitude” when it made the City Hall flag poles available to any private group for flag-raising ceremonies using flags chosen by the group. In so doing, the city turned the flagpoles into a “public forum” and thus could not refuse to fly a specific flag based on the content of that flag. By contrast, an LEA has not made available its flagpoles for use by private groups; rather, the LEA controls the content and meaning of the flags the LEA chooses to fly because the flags express the LEA’s views.  Consistent with the Supreme Court’s ruling in Shurtleff, the LEA is engaging in purely government speech, and thus is free to choose which flags it flies.

Can teachers display pride flags in their classrooms?

This topic requires three avenues of analysis:

1. LEA policies regarding controversial topics
2. LEA policies regarding political activities of employees
3. First Amendment freedom of speech

While the latter is more relevant to this inquiry, it is worth noting LEAs may prohibit employees from wearing political attire (such as a shirt promoting a particular candidate or ballot measure) or presenting only one side of controversial subject during classroom instruction. However, it is unlikely that a pride flag, absent a clear connection to a specific ballot measure or political candidates, constitutes prohibited "political activity." Notwithstanding, if the hanging of the flag creates a disruption to the LEA’s order and efficiency, the LEA may impose a neutral policy prohibiting employees from hanging any materials that are not directly related to instruction. However, please be advised, failure to implement a consistent and neutral policy can expose the LEA to liability for First Amendment violations.

Are there state laws regarding discrimination against LGBTQIA+ students? 

Under California Education Code section 220, “No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid.” 

Under the Safe Place to Learn Act (California Education Code sections 234-234.5), the State of California ensures that “all local educational agencies continue to work to reduce discrimination, harassment, violence, intimidation, and bullying.”

How can I find out my district or school’s policy on parental notification on student gender identity?

Generally, each school district and charter school will adopt its own policies on addressing a student’s gender identity, based on existing law and state guidance. Typically, such policies can be found on the district’s website under the administrative regulations governing student issues and are most commonly found in the 5100s sections (nondiscrimination/harassment).  We caution that a published district policy or regulation may not fully detail how each district or school will address parental notification on student gender identity. Thus, we recommend reaching out to district administration with any specific questions or concerns. 

What does the preliminary injunction order in Mirabelli, et al. v. Olson, et aland. (2023) Case No. 3:23-cv-00768-BEN-WVG, regarding the Escondido Union School District (EUSD) policy governing parental notification on student gender identity and related state guidance, mean for my LEA?  

The preliminary injunction order blocks enforcement of EUSD’s administrative regulation 5145.3 and related California Department of Education (CDE) guidance regarding parental notification on student gender identity. The order is temporary while the court decides the case and only applies to EUSD, CDE, and the officials named in the suit.  The order is not directly binding on any other LEA in California and thus, there is no immediate, direct impact on other LEAs.  Nevertheless, the language in the order does give some clues about how the court may rule in its final decision, which pending appeals, could apply to school districts across California.

It is important to note that this is one of a few cases pending in California involving schools and parental notification of a student’s gender identity. For example, in July 2023, a federal judge dismissed a similar lawsuit challenging the Chico Unified School District’s policy of protecting the gender identities of students from their parents. Unlike the EUSD case, where the plaintiffs were district employees, the Chico case was filed by a parent of a transgender student. The court in Chico ruled that the authority of a district to set policy to safeguard student privacy overrode parental notification rights when addressing student gender identity, particularly where students did not want to inform their parents. As such, this is a quickly evolving area of law and remains open to interpretation based on the varying court decisions thus far.   

While these lawsuits are pending, we encourage LEAs to review the EUSD order and the related case law with their legal counsel, especially where district administration has a similar policy in place or is considering implementing a similar approach.

Are there rules regarding Gay-Straight Alliance or Gender and Sexuality Alliance (GSA) clubs? For example, what grades or ages of children are allowed in GSA clubs? Do parents need to provide permission for their child to participate? Who is responsible for sponsoring/observing meetings? 

California Education Code sections 48930-48938 govern all student organizations, including GSAs. These statutes do not contain any age or grade requirements for membership in student organizations. The statutes also do not contain any requirements related to parent permission for a student to participate in any student organization, or requirements for who must sponsor or observe a student organization meeting. 

Under California Education Code section 48930, student organizations are subject to the control and regulation of the governing board of the school district or charter school. A school district or charter school may have its own applicable board policies regarding age or grade requirements for membership in student organizations, parent permission to participate in student organizations, and/or individuals responsible for sponsoring/observing student organization meetings. 

If community groups come to public board meetings to speak about LQBTQIA+ concerns and challenges, how can public officials allow public discourse and ensure meetings are civil and respectful? 

Although the Brown Act and First Amendment preserve a person’s right to comment during the appropriate time at school board meetings, it is also important to maintain order and help avoid harmful comments toward any student or staff member at those meetings.

Senate Bill (SB) 1100 (effective Jan. 1, 2023) provides new language and tools to address disruptions at board meetings. We note the Brown Act already authorizes a school board to clear the meeting room if a group willfully interrupts the meeting and certain requirements are met. SB 1100 amends the Brown Act by allowing the board president or their designee to remove an individual for disrupting a board meeting, but only after: (1) providing a warning to the person about their disruptive behavior and (2) the person nevertheless continues the disruptive behavior. It is also important to note that SB 1100 clarifies no prior warning is necessary if the disruptive person use force or threatens to use force against anyone.

SB 1100 defines "disruptive" as "engaging in behavior ... that actually disrupts, disturbs, impedes, or renders infeasible the orderly conduct of the meeting." Further, SB 1100 points to an LEA's own board policies to help in setting the standard for removal. In light of SB 1100, we encourage LEAs to review and update their own board meeting policies and procedures to ensure governing boards have all available tools and guidance to help address board meeting disruptions. We also recommend LEAs contact their legal counsel for further guidance on how best to handle disruptions and/or discriminatory comments at board meetings while balancing the Brown Act and First Amendment rights of attendees.

What should I do if I have questions about LGBTQIA+-related issues (e.g., curriculum, clubs, etc.) at my child’s school?

Please contact your principal or site administrator. Know that the school must keep confidentiality in mind; school staff cannot discuss confidential information about students, including the other student’s sexuality and gender identity.