Johnson County school board might ban trans students from using bathrooms they choose

The Gardner Edgerton school board on Monday will consider prohibiting transgender students from using the restroom or locker room of their choice — a policy the ACLU says could violate federal law and cause “irreversible harm” to LGBTQ students.

The proposal scales back a controversial plan the board discussed earlier this summer that would have required teachers to use students’ birth pronouns.

But the American Civil Liberties Union of Kansas and several parents oppose the latest proposal, arguing that it would discriminate against and alienate transgender students.

“It is settled law that it is a violation of Title IX and the Equal Protection Clause in the U.S. Constitution to force a transgender student to use a bathroom based off their sex assigned at birth instead of their gender identity. That issue is settled,” said D.C. Hiegert with the ACLU of Kansas.

The policy would require students to use facilities that conform with their gender assigned at birth. Or, they could use unisex bathrooms. But Hiegert said that is “not really a solution here because that means any trans student will have to be excluded from restrooms and changing areas. That has a stigmatizing effect and can be detrimental to their mental health.”

The proposal also states that district staff should refer to transgender students by their preferred names and pronouns — something that board member Jeff Miller previously proposed banning, sparking controversy. But it requires staff to notify parents whenever their trans student asks to be recognized in a manner consistent with their gender identity.

The ACLU and others have warned against such parental notifications, worried that the practice could “out” LGBTQ students against their consent. The district’s proposed policy states that parents of students under the age of 18 would be notified, “unless it is determined by the district, after consultation with the district’s attorney, that notification of the parent/guardian is not required.”

Debate over pronouns, bathrooms

The new proposed policy comes after a tense couple of months for the school board, starting in July when Miller suggested that the district require staff and students to be referred to by their gender given at birth, and threatened disciplinary action against anyone who would use their preferred pronouns.

He also advocated for barring transgender students from using bathrooms that align with their gender identity. And he wanted to set the stage for parents to sue if district staff did not comply with his proposed rules.

“Gender identification is a distraction in the schools,” board member Russ Ellis said at the time. “We do have a problem with bathroom usage.”

Several members of the majority-conservative board said that they have heard from parents concerned about bathroom and pronoun rules. But most members agreed that legal staff would need to vet any new policy first, so they tabled the discussion.

That led to parents and community members on both sides of the issue flooding the school board chambers during a heated August meeting where misinformation was rampant.

“Students who claim to be transgender status will be granted almost unrestricted privileges while the vast majority of students who acknowledge their birth gender will have their rights slashed,” said Debbie Detmer, who lost a lawsuit last year against the city of Shawnee after she said she was denied entry into a city meeting because she wasn’t wearing a COVID-19 mask.

“The English language is using the pronouns he or him to describe a male and she or her to describe a female. Teach the language as it is,” father David Reeves said. “… We simply are trying to accept an older version of dress up and playing house, which are merely games.”

Some parents threatened to leave the district if transgender students were allowed to use the restrooms of their choice, saying that they worried about their children’s safety, a fear not based in evidence. Research has shown that allowing transgender people to use restrooms that align with their gender identity does not pose safety risks.

Several others pleaded for protections for LGBTQ students, arguing that the proposed policy could harm transgender students and their mental health — when the group already is at a higher risk of suicide.

“We just saw on Aug. 2 how Kansans respond to specific religious beliefs being forced upon them,” said Gardner Edgerton graduate JJ Briscoe, referencing the landslide vote against removing abortion rights from the state constitution.

“For those who support this measure, please know you are grown adults who are picking on the most vulnerable of the most vulnerable,” Briscoe said. “I’d imagine a school board using its time and our taxpayer money to instead discuss ways to make students’ education more productive and safe. This isn’t it. You’ve embarrassed yourselves, Gardner and the state of Kansas for your lack of knowledge on sex and gender studies.”

LGBTQ protections

The ACLU says no federal or Kansas law mandates that schools require students to use restrooms, locker rooms, names or pronouns that correspond with their sex assigned at birth.

The Gardner Edgerton debate comes amid a recent flurry of proposed laws across the country that curtail the rights of the LGBTQ community. In Kansas, efforts to ban transgender athletes from girls sports failed in the state Legislature this spring, without enough votes in the House to override Gov. Laura Kelly’s veto.

Meanwhile, the Biden administration has proposed changes to Title IX — the federal law that protects against sex discrimination in education — that would prohibit schools and universities from discriminating against LGBTQ students. The proposal would compel schools to allow transgender students to use bathrooms that align with their gender identity and address LGBTQ students by their preferred pronouns. Otherwise, schools would risk losing federal funding.

The U.S. Education Department must finalize the rules before it can enforce them. The comment period on the rule runs through this month.

“Once finalized, these new regulations will provide further authority that trans students’ rights are protected under federal antidiscrimination law — and policies like the one proposed in your district infringe on those rights,” the ACLU of Kansas wrote in a letter to the Gardner Edgerton school board.

“The proposed policy not only raises legal concerns — it also creates a detrimental and unwelcoming environment for the district’s trans students that could create lasting harm. …

“Instead, the district should issue clear guidance that teachers and staff must honor students’ requests regarding name and pronoun usage, and adopt a policy allowing transgender students to use the restroom and locker room that corresponds with their gender identity.”

The Gardner Edgerton school board is expected to discuss the new proposed policy during its meeting at 6 p.m. Monday but vote on it at a later date.