Suit Planned Over Gender Definition

The rebellious trustees of the Westminster School District appeared to end their confrontation with state officials and parents last April when they reluctantly agreed to adopt the wording of a state antidiscrimination law meant to protect transsexuals and others.

Unwilling to let it lie, however, trustees and a conservative legal group announced plans last month to sue the state.

Education officials’ definition of “gender,” they argued, contradicted state law and immorally allowed people to define their gender.

But Gov. Arnold Schwarzenegger and state lawmakers have now entered the fray, forcing the trustees to change tactics.

Schwarzenegger has signed legislation that amends California hate crime laws -- including the antidiscrimination law -- which includes a new gender definition that closely resembles the one used by education officials.

The rewritten penal code definition of gender undercuts the trustees’ attempt to find fault with the education code’s definition.

Lawyers for the district say they still plan to sue the state -- now, by contending the penal code’s definition of gender is so vague as to be unenforceable.

Some legal experts, however, say they don’t have much of a case.

The education code had adopted the penal code’s definition of gender -- which until recently defined it as a victim’s biological sex or the sex as perceived by the alleged discriminator -- but the education department had further defined gender as either biological sex or the person’s perception of his own sex.

The new penal code definition of gender, which takes effect Jan. 1, allows people to define their own gender identities, as does the education department. No longer does it matter how the victim’s sex is perceived by the person accused of the discrimination.

The distinction is important to Trustees Judy Ahrens, Helena Rutkowski and Blossie Marquez. Citing their Christian beliefs, the three -- who form a board majority -- have said it is immoral to allow those who are biologically male to define themselves as female, or vice versa.

Such language, the three have said, would open the door to a host of situations such as young boys barging into girls’ locker rooms, and cross-dressing teachers.

Michael Hersher, a lawyer for the California Department of Education, said that though contradictions between the penal code and the department’s gender definitions have been eliminated, the new definition does not address how to resolve such scenarios or how to balance the need to protect against discrimination with the rights of parents and students.

“That’s exactly the frontier this law crosses,” he said. “Someone could presumably argue that they are not discriminating against [a cross-dressing teacher] but are just concerned for the students.”

Mark Bucher, chosen by the three trustees to be the district’s lawyer, said he and lawyers for the Alliance Defense Fund, an Arizona-based Christian legal organization, still plan to file suit against the state, arguing that the new definition is unconstitutionally vague.

“I consider myself a reasonable person, and I have no idea what this means,” Bucher said. “This statute is begging for a challenge.”

Courts can strike down criminal statutes as unconstitutional if they are so vague that people cannot understand them.

The Westminster district, however, will have a difficult time making the vagueness argument, said Brian Levin, director of the Center for the Study of Hate and Extremism at Cal State San Bernardino.

It is irrelevant, both Levin and lawyers for state Atty. Gen. Bill Lockyer said, that the new gender definition omits mention of how the accused perceives the victim.

“I don’t see what the problem is [with the definition],” Levin said, adding that prosecution of gender-discrimination cases still would be based on the perceptions of those accused of discrimination.