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Court blocks transgender rule from schools
by Gregory R. Norfleet · News · August 25, 2016


A federal judge on Sunday issued an injunction against the Obama administration’s transgender bathroom rule, meaning that no school districts must implement the new rule for now.


U.S. District Judge Reed O’Connor of Texas issued a 38-page ruling stating that the nationwide injunction would maintain the “status quo” and that states suing the administration will likely succeed because the government did not follow proper procedures for public notice and provide opportunities for comments.

O’Connor writes that Title IX, as written, meant “biological and anatomical differences between male and female students as determined at their birth.”

“The sensitivity to this matter is heightened because (the federal government’s) actions apply to the youngest child attending school and continues for every year throughout each child’s educational career,” the judge wrote.

West Branch Superintendent Kevin Hatfield said that the latest ruling “changes nothing in our desire to be inclusive, caring and support the needs of all our students.”

“Iowa law includes gender identity as a protected class of citizens — as it should,” he said.

School Board President Mike Colbert also noted the Iowa law that gives protected status to gender identity.

“So while it may have some question at the federal level, Iowa state law is explicit in requiring protection and inclusion for these students — and I believe it is the right thing to do.”

Colbert wrote in an e-mail that all of West Branch’s school leaders want “EVERY student who comes through our doors to feel safe, happy and included.”

“History has shown we are not our best selves when we divide, label, fear and exclude,” Colbert wrote in an e-mail statement. “In the WBCSD, we strive to remove any barrier to learning and we can only do this with open, respectful dialog. I would ask parents or students with any needs or concerns to talk to our building principals, Superintendent Hatfield or Mrs. Burger who is our district Equity Coordinator.”

Prior to Sunday’s ruling the West Branch Times interviewed Hatfield and Colbert on the issue.

At the time, Hatfield said the school district “will follow the law” regarding the transgender bathroom question, though school leaders were still trying to determine exactly what that means.

Both Hatfield and Colbert said parents’ objections to their children sharing restrooms and locker rooms with the opposite sex are legitimate concerns.

That said, should the federal guideline survive the Supreme Court, it will likely mean adding extra privacy panels to existing facilities and reworking plans for an addition at West Branch High School to include individual restrooms.

Neither Hatfield nor Colbert said the know if any transgender pupils attend West Branch schools, but that raises the first question in following the joint May 13 letter from the civil rights offices of the U.S. Department of Justice and U.S. Department of Education: How should the school define “transgender”?

• Is it necessary that the pupil underwent surgery to change their sex?

• Must they report or prove a history of transgender identity, or can they simply decide and walk unannounced into an opposite-sex restroom?

The May 13 letter states that a parent or guardian “notifies the school administration that the student will assert a gender identity that differs from previous representations or records,” and that is when the school district “will begin treating the student consistent with the student’s gender identity.”

Further, schools may not require “identification documents that reflect (a child’s) gender identity.”

The school district asked their attorney to look into the question, Colbert said.



Back and forth

Colbert and Hatfield’s agreement on additional privacy panels and reworking restroom plans came just days before Target Corp. announced it would spend $20 million to quell complaints from customers on its transgender restroom and changing room policy.

Target operates 1,797 locations, including one in Coralville, and 277 do not offer single-occupancy or unisex restrooms.

And, last week, President Obama’s administration ordered more than 9,200 federal buildings to allow transgender access to opposite-sex restrooms.

The federal government argues that this is not a new rule nor a new definition, instead calling it “significant guidance,” providing “information and examples” regarding how the two agencies measure compliance with Title IX of the Education Amendment of 1972.

Earlier this month, the Gloucester County (Va.) School Board obtained a 5-3 ruling from the U.S. Supreme Court to block the transgender bathroom rule until the court issued a ruling on its case.

While the ruling only applies to Gloucester County, Liberty Counsel, a pro-religious liberty nonprofit lawfirm, reported that “the temporary stay has influenced other school districts to postpone establishing policies that would permit use of private spaces according to gender identity.”

Gloucester County School Board asserts that the federal government does not have the authority to change the meaning of “sex” to the decades-old Title IX law.

Should the Supreme Court only rule on the federal government’s authority, and not the transgender question itself, state and local government could decide to keep or reject the rule.

Hatfield and Colbert disagree on that.

“I think we should keep the rule,” Colbert said. “When I think about the students who come through our doors, they’re all unique and different. They all deserve to feel safe.”

Hatfield said he would not recommend keeping the rule, but pointed out that Iowa law already provides protections base on gender identity.

“We don’t need a policy if we can be reasonable and protect everyone,” he said. “Iowa has addressed this in a reasonable manner.”

Asked about weighing the comfort of transgenders against non-transgenders, Colbert said “it comes down to kindness.”

“If I’m not comfortable (with using the restroom) can I be kind enough to leave and use a different restroom or come back a little later?” he said. “The real problem is if one student starts to feel entitled to more than another.”



Obligation

and abuse

The May 13 letter mentions in its opening paragraph that schools have an “obligation” to comply with the rule when a school accepts federal funding.

In West Branch’s case, that amounts to about $240,000 of its $10 million budget.

Neither Hatfield nor Colbert said they feel threatened the federal government would find West Branch in violation and take away funding.

Colbert said he could see some pupils of the prekindergarten-through-high school district abusing the rule.

“In general, I’d probably say that there’s a decent likelihood of that happening,” the school board president said.

Hatfield agreed, though he notes that recent locker room upgrades included individual shower stalls and restrooms.

“People really like the private stalls,” he said.

Colbert noted that, in a small school district, “we know those students” who might abuse such a rule and teachers or staff would likely stop someone, or it would be easy to identify someone who did break the rule.

The rule does not appear to require accommodations for transgenders who visit the school, whether they be substitute teachers, parents or sports fans from opposing schools attending a game.