MCDERMOTT, Ohio – Keith Crabtree, the school board president in the Northwest Local School District in southern Ohio, said he and his colleagues may have a solution to the transgender restroom/shower dilemma that’s impacting schools across the nation:
Make every restroom and locker room unisex, with completely private toilet rooms (and no urinals) within each restroom, and completely private shower stalls in locker rooms, to guarantee maximum privacy for all students.
That way the district would not be forced to allow transgender students to use the restroom or shower facilities of the opposite gender.
There would no longer be any single gender facilities, and therefore nothing left to fight about.
Hundreds of residents of the Northwest Local School District were recently angered to learn that a male student who perceives himself as female has been allowed to use girls restrooms at school.
The school has allowed the practice, because the legal advice the board received seemed to suggest that federal law requires it.
That advice was based on a 2014 memo from the U.S. Department of Education’s Office of Civil Rights, which indicated that open restroom and shower use by transgender students was guaranteed by the Title IX prohibition of sex discrimination in schools.
“We were simply trying to comply with Title IX, based on what we were told,” Crabtree told EAGnews.
But Crabtree was subsequently directed to the Alliance Defending Freedom, an Arizona law firm that provides free representation for school districts that choose to fight the federal transgender edict.
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He learned that there is another side to the legal debate that many school boards are not aware of.
“Some may wrongly assert that Title IX requires schools to allow children who identify as transgender to use the facilities of their choice,” says a legal memo prepared by ADF attorneys. “But that is wrong. Title IX does not require schools to allow those who identify themselves as transgender to use their chosen facilities.
“Significantly, no court has ever interpreted Title IX as requiring schools to give students access to opposite sex restrooms and changing areas.”
ADF attorneys also note that the memo sent out by Department of Education is nothing more than a non-binding “guidance document” that has no legal teeth.
“That significant guidance document has no binding legal authority whatsoever,’” the ADF memo says. “To the contrary, federal regulations make clear that significant guidance documents issued by executive agencies are ‘non-binding (in) nature’ and should not be ‘improperly treated as legally binding documents.’”
After talking to ADF, Crabtree went back to the original attorney to double-check the advice the board was given.
He said the attorney claimed that the district did not necessarily have to allow transgender students to use opposite gender facilities, but courts have been ruling in favor of those students, and the district would be taking a legal risk.
That sort of legal uncertainty is unfair to school boards that are only trying to do the right thing for all students while remaining within the law, Crabtree said.
“There seems to be a discrepancy between what we have to do, and what it would be wise for us to do, based on court cases in the past,” he said. “That puts school boards across the nation in a tough situation.”
The uncertainty led Crabtree and his colleagues to start discussing the possibility of reconfiguring school restrooms to make them unisex and private for all.
While that would be expensive, and some people would probably continue to object, Crabtree isn’t sure he likes the other alternatives.
The first would be to leave the facilities they way they are, and continue to allow transgender students to use opposite sex restrooms. Hundreds of residents have angrily protested that practice and will probably continue to do so.
“We have a community that absolutely doesn’t want this, and it puts the board in a very bad position,” Crabtree said.
The district could also force the transgender student to stop using girls’ restrooms, but that could provoke a lawsuit from the American Civil Liberties Union, or a cutoff of millions of dollars in education funds from the federal government.
Crabtree knows the school board could spend a fortune in legal fees fighting a lawsuit and ultimately lose, anyway. And he said there’s no way to to know if the government is bluffing about cutting off crucial federal school aid.
“(The federal aid) is the leverage they try to use,” Crabtree said. “We heard that straight from the attorney at a board meeting. He said that if we don’t comply with Title IX (the way the Obama administration defines it), the feds can put the hammer down and we could lose money.
“That unnerved a lot of people, especially on the board. You have to ask yourself, if you do fight this thing, do you lose your funding?”
In the end, having restroom and shower facilities that are gender neutral, and offer maximum privacy to all students. might be the fairest and most legal way to go, according to Crabtree.
No students would be treated any differently based on gender or perceived gender, and all students would have maximum privacy. Neither the federal government nor the ACLU would seemingly have anything to complain about.
“Our intention (at this point) is to commit to all unisex, even if we have to pay for it,” Crabtree said. “This is more of a privacy issue. It goes beyond gender.”
Unfortunately it seems that most school districts around the nation are only hearing one side of the legal debate. Their attorneys tell them they must follow the federal edict regarding transgender students, and they tend to fall into line.
As Troy, Ohio school board member Joyce Reives recently said during a debate about a transgender/restroom issue in her district, “We are always for adherence to the law, the law as we understand it.”
“In any geographic area there are usually one or two law firms that represent the majority of the school boards, so one attorney is going into half a dozen districts and telling them they have to do this – that’s the advice they’re getting,” Matt Sharp, an attorney for ADF, told EAGnews.
Part of the problem is that lawyers tend to be very political, and the majority are pretty liberal, Sharp said. In some cases that means their political ideology comes before the actual law, he said.
“I don’t think it’s any secret that the legal profession as a whole is pretty liberal, and when they get something from the (Obama) administration, they go with it,” Sharp said.
“They downplay the actual language of Title IX and what the courts have said. That’s not important to them. What’s important is what the Obama administration says.”
ADF is eager to spread the entire story about the alleged tie between Title IX and gender identity issues.
“We’re trying to show schools that this is what the law actually says, and they can take a stand and win,” Sharp said. “There are several dozen that we’ve worked with after they’ve read our materials.
“The majority of them have come in the past few months, and with school starting again it’s really exploded.”