A school board outside of Wichita, Kansas, voted this week to ban transgender students from bathrooms that match their gender identity, saying they took license for the new rule from the Trump administration.
“Trump was basically leaving it up to us,” Tina Prunier, a member of the Derby Board of Education, told BuzzFeed News in explaining her vote in favor of the rule. “I thought it would be best for the district overall.”
But lawyers for progressive LGBT groups countered that regardless of the federal government’s position, private citizens can still sue the district if a transgender student comes forward with a complaint.
“We are standing ready to file lawsuits against school districts like this one that are discriminating against transgender students,” Demoya Gordon, a staff attorney for Lambda Legal, told BuzzFeed News. “There is no staying out of this issue. This is a federal civil-rights issue.”
To get context for the school board’s vote on Monday, you must rewind to last year. At the time, the district had the same ban on transgender student restroom access it adopted this week — for example, transgender girls couldn’t use the girls restroom.
But in May 2016, the Obama administration announced that all federally funded schools must accommodate transgender students in facilities that match their gender identity. That guidance was based on an interpretation of Title IX, a civil rights law that bans sex discrimination in schools. The Derby Board of Education, in turn, voted to conform to that federal policy — leading some parents to complain.
Cut to 2017: The Trump administration last week withdrew the Obama-era rule, saying that states and local jurisdictions could decide for themselves.
Many states and district decided to keep their trangender-friendly rules in place. But the Derby Board of Education voted 5-2 this week to go back to their original procedure for transgender students. They voted on how they would handle the matter — to ban transgender students from restrooms that match their gender and attempt to offer them other accommodations — even though it was not codified in a written document.
In an interview, Prunier had a hard time explaining her vote to block transgender students from certain restrooms, other than saying that Trump allowed the district to do so, and that it was the district's best interest.
“To be quite honest, it’s not something I have gone over in my mind,” she replied when asked why she said it was best for her district. “It’s not something I feel strongly one way or another about — their personal rights or how they wish to be.”
Her vote reflected community values, she said, adding that it wasn’t actually her motivation. “The parents were very vocal that they were not happy,” she explained. “We mostly heard about a male going into a female bathroom to violate or do things they weren’t supposed to be doing in the restroom.”
Asked if there were any such incidents, she replied, “As far I know, none have been reported.”
Matt Hoag, a board member who voted to keep the transgender-friendly policy, concurred that “we had not had any reports of privacy or safety incidents…It appeared to me that we were accommodating needs without causing harm.”
None of the other school board members replied to a request to comment.
Craig Wilford, the superintendent of Derby Public Schools, told BuzzFeed News he did not know how many transgender students are in the district, but he estimated “less than 10.”
“I believe we had two students request use of facilities that match their gender identity,” he said by email. “I do know we gave students who disagreed with allowing transgender students to use the restroom an option to request different accommodations.”
Gary McCaleb, senior counsel to Alliance Defending Freedom, a Christian group that advocates for protecting traditional families, said the school district's vote “simply restored the norm.”
The new guidance from Trump, he added, “means that the federal government will no longer threaten local school boards with financial ruin for making prudent, compassionate policies that protect the privacy of all students.”
However, Chase Strangio, a staff attorney for the ACLU, does not expect more schools to follow the path of Derby because schools recognize the legal risks.
“The Board absolutely did not have to roll back protections for transgender students to comply with the recision of guidance by the Trump administration,” Strangio told BuzzFeed News.
"In fact," he added, "the school is still liable for violating the federal statutory and constitutional rights of students for any enforcement of a policy that amounts to discrimination on the basis of sex, including discrimination against transgender students because they are transgender.”
The staff attorney for Lambda Legal, Gordon, meanwhile, pointed to a court decision in Pennsylvania this week that sided with three transgender students on constitutional grounds. That only emboldens groups like hers to defend transgender students, regardless of the federal government's position.
“By rolling back its policy, this district has exposed itself to a lawsuit for violating Title IX as well the Equal Protection clause of the Constitution,” she said.
Superintendent Wilford said a case scheduled to go before the Supreme Court this month could settle questions about the rights of transgender students. “As to the issue of lawsuits,” he added, “that would be for our attorney to address.”