by Sarah Hall
for The Beacon
Personal freedoms dominated the spirited discussion at the Plymouth Board of Education’s March 7 Committee of the Whole meeting, where attorney Tony Renning shared an overview of the district’s legal obligations to transgender students.
An unusually large crowd of nearly 40 community members turned out to listen and ask questions. Renning, who provides legal counsel for the district, focused on the impact of the federal Title IX law passed in 1972 – which prohibits discrimination on the basis of sex in educational programs – on situations arising more recently involving use of locker and rest rooms by students who identify with a gender different from that assigned at birth.
Coincidentally, the board also introduced a new policy balancing employee rights to free speech with limitations intended to protect the district’s interests. Another new policy proposed would require employees who are charged with a crime to report it to administrators within three days.
The district’s handling of the privacy issues revolving around the use of locker and rest rooms by transgender students had come under scrutiny at the February school board meeting, where parents asked for more communication. Renning’s presentation was in response.
“Back in 1972, there wasn’t a whole lot of talk about transgender status or gender identity,” Renning told the board and audience at the March 7 meeting. At that time, Title IX did not specifically define the term “sex” beyond just “male and “female,” he explained.
This “created a lot of issues and opportunity for interpretation” and a need for school districts to handle the matter on a case-by-case basis, Renning said.
But he noted it’s nonetheless clear that “the state of the law today is that students have a right to use the restrooms and locker rooms that match the gender identity that they’re associating with.” Other parties affected can ask for additional privacy, however.
Renning shared an overview of how differently the last three presidential administrations have handled transgender rights.
In 2016, under President Barack Obama, the term “sex” in Title IX was broadened to transgender identity or status.
The federal Department of Education and Office for Civil Rights rescinded that 2016 guidance, in favor of local control, and stopped enforcing Title IX compliance related to transgender complaints under President Donald Trump.
Upon taking office, President Joe Biden immediately issued an executive order that all people should have equal treatment under the law, without regard for gender identity or sexual orientation.
Currently, “the Department of Education and Office for Civil Rights are enforcing Title IX on a much broader scale,” Renning said. “They’re being a lot more active and aggressive with regard to the challenges that they receive.”
“And so we look to the courts,” which also sometimes rule on grounds of equal protection under the constitution and/or on Title VII, the Civil Rights Act of 1964, he continued.
But “the courts are all over the place with respect to how they are deciding this… It’s created a huge issue,” according to Renning.
“At some point, the Supreme Court is going to have to take this up and give us some guidance,” he said.
Renning pointed out that the Madison, Wisconsin school district is at the heart of a battle right now regarding its policy that the district has no obligation to share with parents if their son or daughter comes forward as transgender, but cannot conceal it if asked. After the policy was initially upheld in court, it is now being reconsidered under appeal.
None of the 140 districts that his firm represents currently have a policy regarding transgender students in place, he said, adding that “the district has the right to implement policy but they can’t violate the law with their policy.”
How can school districts define “transgender?,” board and audience members asked.
“We’re really looking at what the student is asserting and how the student is behaving… They don’t have to be going through some formal medical process,” Renning replied.
“We really have to be careful that we’re not specifically identifying a student who is going through this transition,” he added. Even so, others may figure out that a student is transgender based on manner of dress or behavior.
Board Treasurer Tony Backhaus asked about what might happen if students change their minds about their desired gender identity and Renning said that does not affect their rights.
One audience member asked a rhetorical question: “Are you telling me that a child, or even a student of 17 or 18 years old, has the cognitive ability to make a life-changing decision” such as changing their gender?
Another man questioned whether the district might need to employ staff trained in psychology to determine if a student is truly serious about making a transition.
“I don’t think we are or should be asking staff to get into the minds of our children,” Renning opined.
Board member Aaron Martell said that “it opens up a Pandora’s box” and is a contradiction that the rights of the transgender individuals are protected, but not those of the majority. He called it a “relative truth” that children can decide their own gender.
“When does that relative truth stop, to say that I can do anything and everything I want, without repercussions?,” he asked.
Board President Bob Travis replied that he “could see some younger students playing games with this,” but doubted that switching between genders would be typical.
“When is it a game, and when is it something bigger?… and who is going to make that call? Obviously, even the Supreme Court doesn’t want to make that call,” he continued.
“I think it’s got to start with dialogue rather than trying to create a rule right now. It’s very clear that we’re boxed in on creating a hard and fast rule,” Travis concluded. “My take is: At this point, it’s case by case. We need to sit down with the students and the families and try to work towards a resolution.”
One man interjected to say, “I just want to remind everybody that Title IX is there to protect the rights of everyone.”
“I am a parent of a transgender child in our district,” commented one woman participating in the meeting virtually. “Please help me try to figure out how to make it best for everyone.” She explained that she wants the district to uphold its mission of helping all students achieve their potential and would never want her child to interfere with that in any way.
Another parent asked if a locker room could be partitioned to protect the privacy of the respective parties, or would that be considered discriminatory.
Locker and rest room situations “are already happening we don’t have time to sit and wait for a court case to come out,” another audience member added. She complained that students and families do not know what options they might have, and some may not be inclined to speak up and asked about them anyway.
Renning maintained, as he did throughout his presentation, that mutually acceptable solutions are fine but “schools can’t force a transgender student to use facilities that do not match their gender identity or to force them into separate facilities.”
Possible penalties could include the loss of federal and state funding, plus legal costs, he added.
A woman in the audience spoke up to say that she found any presumption of ill motives on the part of transgender students offensive.
“Your discomfort does not allow you to go against others’ civil rights,” she said. “This is pretty embarrassing how non-inclusive we are and that you guys all think the trans students have this malicious intent… Everyone just needs to be a little more kind.”
Superintendent Dan Mella confirmed that taking a cooperative approach and trying to work out a mutual solution is how the district generally handles transgender issues.
“That is the practice we follow in every one of these cases. In most cases, there is cooperation,” he said. “We always start with the student and the parent if we can.”
Achieving a voluntary solution that all parties can live with is to the district’s advantage and minimizes the potential for conflict and liability, Renning added.
He also addressed dress codes, noting that the district has a right to maintain and enforce them but must do so in an equitable way.
As for Title IX compliance in sports, that is overseen by the governing agency, which in this state is the Wisconsin Interscholastic Athletic Association, Henning said.
Wisconsin also has state statute 118.13 that prohibits discrimination on the basis of sex in schools.
Travis concluded the question-and-answer session by noting that sending helpful communications to parents and a holding town hall style meeting hosted by school board members may be considered.
The board then went on to address other business, including the new free speech policy that is being proposed for staff.
“This one was based on recent cases,” Mella noted. “A lot of it stems from use of social media platforms. It’s a little bit of protection from liability for everybody.”
The proposed policy acknowledges the right of employees to speak out on issues of public concern but requires them to differentiate between personal views and those of the district and refrain from disrupting staff harmony or discipline, making threats or defamatory comments about others who work for the district and spreading falsehoods.
The policy will be voted on – along with another one requiring employees to report any crimes other than routine traffic offenses that they are charged with – at a subsequent meeting.