School restrooms and locker rooms have become legal battlegrounds recently as courts in the Lower 48 puzzle over how schools should treat students who don’t identify with the gender they were assigned at birth.
Now, two statewide education organizations are trying to equip Alaska school districts with policies regarding transgender students.
“Gender identity” and “sexual orientation” — those are the four words that school districts across the state are being advised to add to their school board non-discrimination policies.
The language is coming from the Association of Alaska School Boards, a non-profit organization with a membership of over 50 school districts.
AASB director of policy services Bob Whicker says though every district adopts its own policy, “usually they need guidance from around the nation and through also legal means, because a lot of these policies have developed through court cases or challenges to existing policies.”
Whicker says several court cases to do with transgender students have been brewing in the Lower 48 recently.
In October, the U.S. Justice Department supported a Virginia student who sued for access to the boys’ restroom at his high school. The Obama administration said the issue falls under Title IX, a federal law that bans sex discrimination.
In another case, the U.S. Department of Education told an Illinois district that it violated a transgender students’ rights when it required the student to use separate changing and showering facilities.
Whicker says AASB is trying to prevent such legal battles in Alaska.
“The legal team here that AASB uses, they go and glean this info from these different court cases that are out and about,” he said. “And they thought we could help school districts by putting within the discrimination board policy gender identity and sexual orientation.”
The Southwest Region School Board looked at the new policy at a meeting this month. They had unanimously passed the new language in a previous meeting, but after looking at the regulations that come along with it, Board President Kay Andrews said board members were hesitant about what looks to them like another unfunded mandate.
“It’s something that we’ve never had to deal with before,” says Andrews, “and we’re barely able to keep two bathrooms open, much less develop a third one. So that’s concerning.”
The SWRSD school board decided to table the policy until they can get legal counsel on what it might mean in practice.
Meanwhile, the Alaska School Activities Association – the regulating body for interscholastic sports and other activities – is also grappling with its regulations on gender identity.
Executive Director Billy Strickland says ASAA is updating a bylaw about contact sports that are separated by boys’ and girls’ teams.
“We are contemplating adding language that would say ‘the association – that’s ASAA – will rely on the gender determination made by the students’ member school using an objective process,'” said Strickland.
“So the gist of that is, we feel like member schools have to have an objective process for making gender determinations, but once they do so, that student may participate based on the gender that their member school has deemed appropriate for them.”
What that “objective process” for gender determination looks like will have to be fleshed out by each district. But Strickland says it should have to do with making sure a student has consistently identified with a gender over a period of time.
“It’s not that the student just suddenly declares ‘I am a girl,’ or ‘I am a boy,'” says Strickland. “I think there’s a certain amount of background, that’s followed through with statements from family, friends of the family, maybe even a psychologist.”
“We don’t anticipate each districts’ process looking the same,” he said, “but those would be some of the processes.”
It’s a controversial change, which Strickland expects will see some pushback. But he says the policy change will not only help protect schools from lawsuits – it also supports ASAA’s mission to encourage student participation in activities.
“The student that is currently uncomfortable participating based on their gender identity – ultimately, we also want that student to be able to benefit from what extracurricular participation does for kids. So I don’t think that we won’t have some people thinking this is the wrong idea. But we believe it is a step in helping our member schools deal with difficult decisions. And it’s part of what we do.”
Several districts in the state – notably, Anchorage and the Fairbanks-North Star Borough School Districts – have included gender identity in their non-discrimination policies for several years now.
Superintendents from the other three Bristol Bay-area school districts, which also subscribe to AASB policy services, say they expect their school boards will discuss the policy in future meetings.