School Board Looks at Federal Law, Transgender Rights

Londonderry School District Superintendent Nathan Greenberg confirmed that transgender students cannot be excluded from going on overnight trips and sleeping in a room with children of the gender with which they identify.

But it may not be as big an issue as people think, he added. “The kids are already aware of who is, who is not,” he said. “If kids agree to room together, the parents know, too. That’s it.”

Forget budgets, buildings and even school lunches. The Londonderry School Board is facing one of its strongest challenges in recent years: protecting a small but vulnerable segment of its population while safeguarding everyone’s rights and modesty. The board discussed the issue of transgender students, including bathrooms, locker rooms and overnight trips, at its May 17 meeting.

Board chair Nancy Hendricks preceded Greenberg’s presentation by stating, “It is the position of this board that we support all students. We are beginning the discussion and will continue to offer information.”

Hendricks also asked for all communication to be “thoughtful, respectful and non-inflammatory.”

Background

Greenberg gave background on the issue and the protection of transgender students in public schools. The district offered a half-inch-thick packet of supporting material, and Greenberg referred to about a third of it during his PowerPoint presentation.

Greenberg pointed out that the district already has a Non-Discrimination policy, Policy AC, and a Sexual Harassment Prevention Policy, Policy ACA-S. Based on recent cases, he said, “It is clear that transgender students are included under vari ous Federal laws including but not limited to Title IX and the Civil Rights Act.” Greenberg noted that the Civil Rights Act and Title IX are the basis for the two policies and said, “It would make sense going forward for the board to adopt guidelines pertaining to transgender children.”

Greenberg’s presentation included the following definitions:

• “Transgender,” a person who consistently and uniformly asserts a gender different from the gender assigned at birth;

• “Gender identity,” one’s self-conception as to being male or female as distinguished from actual biological sex or sex assigned at birth; and

• “Gender expression,” the manner in which a person represents or expresses gender to others, including behavior, clothing and hairstyles.

Transgender students are protected under Title IX, the Civil Rights Act and Department of Education guidelines issued in 2014, Greenberg said. He also said that the First Amendment protects students’ rights to free speech and freedom of expression, including the expression of gender identity.

He made frequent reference to the recent Grimm case in Virginia, and the Arcadia case in Maine. In addition, he said, he received a letter dated May 13 from the U.S. Department of Education (DOE) and Justice Department (DOJ).

Considerations moving forward should include the following, according to Greenberg: Privacy; official student records; use of pronouns such as “him” or “her;” restroom use; other gender-segregated facilities and activities; dress codes; and harassment. Greenberg said the board should look for more than a “casual” declaration of gender identity, and approach each child on a case-by-case basis.

Greenberg said, “The school must not treat a transgender student any differently than it treats others of the same gender identity.”

This, he said, calls for a “safe and non-discriminatory environment.”

Greenberg interprets this as transgender students being able to use the restrooms and other facilities with which they identify, and to go on overnight trips consistent with their gender identity.

Greenberg also noted that according to FERPA, the Family Educational Right to Privacy Act, the child’s sex at birth and birth name must be kept confidential, except when there is “a legitimate educational interest.” He compared this to a nurse and doctor talking about a patient in a crowded elevator. “That is a violation of the law,” he said, adding that the confidentiality applies to all students and not just transgender.

And Greenberg reminded the board and audience that these rights are already spelled out under Federal law. “A state can exceed the Federal law,” he said. “It cannot go lower.”

State law also provides for these children’s rights in RSA 186:11, where school boards are charged with “no unlawful discrimination in public schools on the basis of sex, race, creed, color, marital status, national origins or economic status.”

Dealing with

misconceptions

Greenberg broke from his speech to deal with one misconception: that students who identify with a different gender are a threat to other students. The issue was brought out in the recent Candia School Board deliberations on that school’s transgender policies, and Greenberg said his research shows that it isn’t true.

In his research, he said, he learned that transgender students are more likely to be harassed and bullied. “There is no evidence,” he said, “that transgender students are predators.”

Students in this subgroup have a high rate of suicide, Greenberg added.

He quoted a MediaWatch survey of 17 school districts, where not one transgender student was found to be a predator.

But some parents in the public forum said they weren’t worried about the students so much as predatory adults who would take advantage of the situation.

Parent Alicia Veda observed that she didn’t think transgender students caused rapes. “But some people may take advantage of the loopholes and gain access to the locker room or bathroom,” she said.

Greg DePasse, father of two girls and one boy, disagreed. With the safeguards built into Greenberg’s draft policy, including that a child must identify with the other sex more than casually, “this does not allow a boy to pretend to be a girl and sneak into the locker room.”

Greenberg pointed out, “There’s nothing now that prohibits a person from dressing like a woman, going in the girls’ bathroom and being a predator.”

Support

DePasse said he supported the creation of a policy. “I think you are being proactive,” he said.

Resident Holly Mackey said, “Who are we to judge?”

Kristen Rolfe, a parent and teacher, said dealing with the issue is not an option. “It’s mandated in Federal law,” she said, adding, “Also, I personally feel it’s the right thing to do.

“My concern,” she said, “is that people are fear-mongering. They are making a huge issue of this. It’s the fear of the unknown.”

Objections

Resident Laura El-Azem asked whether the letter from the DOE and DOJ was a mandate or a recommendation. Greenberg said the document gave guidance from Title IX and the Civil Rights Act. But, he added, “The letter is in support of the Grimm decision.” If a complaint is brought against the district, it will be addressed in light of this, Greenberg said.

El-Azem noted that opinion in the community is divided. “Don’t make a social statement with this,” she said. “You speak for our entire community.”

El-Azem asked the board to continue providing single-person restrooms, to protect the modesty of all students.

In the matter of using the pronoun the student requests, El-Azem observed, “You are delving into a free speech area here. Some students are good-hearted. They are not being nasty on purpose.”

Londonderry Republican State Rep. Dr. David Lundgren took the microphone to say, “This is not a law. It’s a mandate from the President, who threatens to take money away from the school districts.”

He urged Greenberg to “take a stance as you did with the lunch program.”

Lundgren said he had two daughters. He asked Greenberg, “Would you be comfortable with your daughter changing and showering in the same locker room as a boy?”

“If that student consistently identified as a transgender girl, yes, I would,” Greenberg responded.

“This is a small minority,” Lundgren said. “Where are the rights of the majority?”

Republican State Rep. Al Baldasaro weighed in, saying a “bathroom bill” came before the Legislature in 1999. “We had testimony from many people,” he said. “The bill passed the House by one vote, but the Senate killed it. There were too many ‘what ifs.'”

Baldasaro said the policy study is putting an unneeded light on the subject. “What you have works,” he said. “If it’s not broken, why fix it?”

Denise Piro has a 15-year-old daughter and said she was “deeply opposed” to the policy. “Girls in middle and high school are already uncomfortable about changing in the locker room,” she said. “I’m not against transgender people. But we are born a man or a woman.”

The Federal government has overreached, Piro said, adding, “We shouldn’t start this with children. Start with adults, they can handle it.”

The money piece

One of the ideas floated was to make sure every locker room has private changing areas and every school has private bathrooms. Greenberg gave a snapshot of the current situation.

High school girls have individual shower stalls with curtains, while boys have a “gang shower.” Each gender has a few “alternate dressing areas” children can use for a variety of reasons. He said he has done an inventory of all the schools and suggested temporary “modesty areas” until the policy is firmed up.

Board member Jenn Ganem said, “So anyone uncomfortable with a transgender student can use a stall.”

That is correct, Greenberg said, adding that the locker rooms aren’t an issue for elementary school because students do not change clothes for gym.

There is no money in the current budget, Greenberg added.

There’s also the specter of having Federal funds pulled if the district does not comply, and El-Azem asked Greenberg how much money the Feds contribute to Londonderry School Administrative Unit (SAU) 12. Between Special Education and Title I, it’s about $2.5 million or 3 percent, Greenberg said.

El-Azem said, “I support any policies that break us free from government control. This is a Federal overreach, the usual carrot-and-stick Federal nonsense.”

Board member Steve Young agreed. “It’s another unfunded Federal mandate,” he said.

And Baldasaro said, “I think you should tell the government to pound sand.”

It’s not all that hard to convert a bathroom, Kristen Rolfe said. She was a student at a former all-boys school, and the administration simply put Hefty bags over the urinals. “I would even be willing to donate the bags,” she said.

“We are here for

all students”

Board members reassured residents that they will not rush into this issue. Board member Dan Lekas said, “Regardless of my personal feelings, a lot of this is Federal or state mandated. I don’t know what we can do about it. If we’re unhappy, we should address it on the Federal or state level.”

Lekas added, “I am uncomfortable making a vote now without being better educated.”

Board member Leitha Reilly agreed. “We already have policies in place to prevent discrimination,” she said. “Now it’s more procedural and operational.”

Council Chair John Farrell, who is liaison to the School Board, urged caution. “Be thoughtful, kind, take your time,” he said.

And Hendricks asked parents to contact her or board members with questions. “I can assure you,” she said, “that your board will craft guidelines that will protect all the children in the district.”

Newsletter Updates

Enter your email address below and subscribe to our newsletter