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The Massachusetts Board of Elementary and Secondary Education

Amendments to Regulations on Access to Equal Educational Opportunity, 603 CMR 26.00, and Charter Schools, 603 CMR 1.00 - Non-Discrimination Based on Gender Identity

To:
Members of the Board of Elementary and Secondary Education
From:
Mitchell D. Chester, Ed.D., Commissioner
Date:
June 19, 2012

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At the April 2012 Board of Elementary and Secondary Education meeting, the Board voted to invite public comment on proposed amendments to the regulations on Access to Equal Educational Opportunity, 603 CMR 26.00, and Charter Schools, 603 CMR 1.00, to incorporate the new requirements of state law protecting students from discrimination in public schools based on gender identity. I will ask for a final vote on recommended revisions to the regulations at the June 26, 2012 Board meeting.

Background

An Act Relative to Gender Identity (Chapter 199 of the Acts of 2011), which takes effect on July 1, 2012, amends G.L. c. 76, § 5, pertaining to public school enrollment and nondiscrimination, and G.L. c. 71, § 89, governing charter schools, by prohibiting discrimination on the basis of gender identity. The recommended regulations would revise 603 CMR 26.00 and 603 CMR 1.00 to align with the changes to G.L. c. 76, §5, and G.L. c. 71, §89, by including gender identity among the categories of discrimination that are prohibited within the public schools.

Public Comments

We received three comments on 603 CMR 26.00 during the public comment period. The Massachusetts Teachers Association is supportive and recommends no changes. The other comments came from Gay and Lesbian Advocates and Defenders (GLAD), and from the Massachusetts Transgender Political Coalition, in support of GLAD's comments. GLAD urged that we add language to § 26.05 to address gender identity discrimination in the context of participation on designated male and female athletic teams, and recommended language to address the issue.

We agree with GLAD that the new state law protecting public school students against discrimination based on gender identity applies to all public school programs and activities, including school-sponsored athletic teams that are designated for male or female students. Excluding a transgender student from a team that does not match the gender listed on the student's birth records would constitute unlawful discrimination on the basis of gender identity.

We recommend adding language in the final regulations to make clear that students must have the opportunity to play on a male or female team, consistent with the student's gender identity. Specifically, the amendment to § 26.05 reads as follows (new language is underlined):

(5) A school may establish or sponsor separate teams for males and females for interscholastic and intramural competition in a particular sport where selection for the team is based upon competitive skill provided that the requirements of 603 CMR 26.06(6) are satisfied. A student shall have the opportunity to participate on the team that is consistent with the student's gender identity.

Adding the language at this time, i.e., early in the implementation of the law, will help avoid confusion and disputes that might otherwise arise on this issue.

There are no other changes that we propose in these final regulations.

Next Steps

If the Board approves these regulations, we plan to work with advocates such as the Massachusetts Commission on Gay, Lesbian, Bisexual and Transgender Youth, GLAD, the MA Interscholastic Athletic Association (MIAA), MA Secondary School Administrators Association, MA Elementary School Principals Association, MA Association of School Superintendents, and others to develop and provide guidance and technical assistance to school districts on implementation of the new law.

Enclosed are the recommended final regulations, with new language indicated by underline. Also enclosed is a clean copy of the final regulations as they would appear if approved. Sections of the regulations that are not being changed are omitted. For the complete text of the current Regulations on Access to Equal Educational Opportunity, 603 CMR 26.00. The current Charter School Regulations may be found at: 603 CMR 1.00. A copy of Chapter 199 of the Acts of 2011 is enclosed for your information as are copies of the public comment that we received.

Enclosures:

Download PDF Document  Download MS WORD Document
Final regulations - 603 CMR 26.00 - Clean Version
Download PDF Document  Download MS WORD Document
Final regulations - 603 CMR 26.00 - Tracked Version
Download PDF Document  Download MS WORD Document
Final regulations - 603 CMR 1.00 - Clean Version
Download PDF Document  Download MS WORD Document
Final regulations - 603 CMR 1.00 - Tracked Version
View External Link
Chapter 199 of the Acts of 2011, An Act Relative to Gender Identity
Public Comment: MTA, GLAD, and MA Transgender Political Coalition
Motion


Last Updated: June 22, 2012
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