California Voters May Decide Transgender Bathroom Issue

Gender Neutral (Ted Eytan / Flickr / Creative Commons)
Ted Eytan / Flickr / Creative Commons

In August 2013, Governor Jerry Brown signed AB 1266, titled the School Success and Opportunity Act by the bill’s author, then Assemblyman Tom Ammiano (D) of San Francisco. This rosy title was never really used, as the legislation, amongst the most divisive in recent years, became known simply at the ”Transgender Bathroom Bill.”

According to the legislative counsel summary of AB 1266, “This bill would require that a pupil be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

Or to be more prescise: this law now means that if a student who believes that they are one sex, even though their physical characteristics might suggest they are of the other sex, may use the restrooms and showers of their desired sex, and play on the athletic teams of their desired sex.

When the bill was coursing through the legislative process, it was very controversial, to say the least. The ink was hardly dry on the Governor’s signature when, less than 72 hours later, a written request was submitted to the Attorney General by a group called Privacy For All Students to begin the processes of taking a referendum on the bill to the voters.

Under California law, if enough California voters, equivalent to 5% of those that voted in the last gubernatorial election, sign petitions within a certain window of time, then a newly passed law is suspended, and that legislation is placed before the voters at the next general election. Based on the 2012 election results, the number of valid voter signatures required for the referendum of AB 1266 was 504,760. Ultimately, the signature-gathering efforts of referendum supporters resulted in 487,484 voter signatures being validated – close to the number needed, but falling short.

Fast-forward to the dismal voter turnout in the 2016 general election in California, which sets the 5% number of voters in the last gubernatorial election at 365,880–a significant drop in the requirement for signatures to place an initiative on the ballot in California.

Last Friday, Privacy for All submitted language to the Attorney General for a ballot measure that would, in essence, repeal the part of AB 1266 that deals with bathroom, shower and locker facilities. Specifically, the language submitted says: “Notwithstanding any other provision of law, a person shall use facilities in accordance with their biological sex in all government buildings.”

If the referendum ends up before voters, it is very likely to pass. That said, even with the substantially lower number of signatures needed to qualify, it is major endeavor to gather all of those signatures. The Privacy for All group has a huge leg up because, of course, they have the names and addresses of every person who signed the referendum.

The proponents of this ballot measure are also helped by the fact that in the last referendum campaign most of the signatures gathered were through volunteer efforts, not through paid efforts. That means there is a substantial infrastructure in place, which can be utilized again.

From time to time the ultra-liberal California legislature passes a bill that is so out of touch with where even blue-state voters are that you say to yourself, “If this went to the voters there is no way it would be upheld!” This is one of those bills.

The effort to bring the “bathroom bill” before voters next year is not a surprise, and in fact was one of the ten most likely measures I predicted would end up on the November 2016 ballot.

If it does qualify, it will bring an interesting political dynamic to next year’s election turnout. A measure such as this would be very likely to mobilize faith-based communities to register voters and turn them out. No doubt there will be some on the extreme left who will engage to try and stop the measure–but I believe that will be a much smaller number, relatively.

In the meantime, under California law, it remains legal for any high school boy to fill out paperwork indicating that he personally identifies himself as a girl, and to use the girls’ locker room and showers. But of course no mischief can come of that, right?

Jon Fleischman is the Politics Editor of Breitbart California. A longtime participant, observer and chronicler of California politics, Jon is also the publisher at His column appears weekly on this page. You can reach Jon at


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