In light of the recent Biden administration announcement expanding Title IX protections to transgender students, the Bloomington school board put forth two new policies for discussion at last night's board study session.

April 22 School Board Study Session Agenda

The proposed new policies are:

Policy Concerns

There are several points of concern based on a cursory reading the policies:

  1. The policies are carefully worded to avoid compelling others to use student and staff pronouns, but instead frame "misgendering" as harassment , stating "the intentional or persistent refusal to respect a student/staff’s gender identity (for example, intentionally referring to the student/staff by a name or pronoun that does not correspond to the student/staff’s gender identity) can constitute harassment and is a violation of this policy."

    So just one intentional pronoun misuse could be considered harassment

  2. Students can access any restroom, locker room or changing area that they decide fits their gender identity.  If other students have an expectation of privacy, they have to use alternative facilities.  So for the 0.2% (or less) students that have non-conforming gender identities, they can use whatever facility they want without any declaration of identity to school staff, and if anyone else considers this a violation of privacy, they have to seek out an alternative

  3. How would staff know a student was using a facility based on their gender identity versus being inappropriate or have malicious intent?

  4. How would a student who wants an alternative be able to access that if a non-conforming student decides at the last minute to use a different gender facility?

Based on prior history, we would expect that the board is going to pass these policies with minimal changes to the current wording.  However, there are many loopholes and gaps in this policy that endanger students and leave them exposed to invasions of privacy or worse and have the opposite effect of creating safe and secure schools.

Study Session Recap

There were many discussion points raised by board members during the study session, mostly by board member Beth Beebe.  Here is a condensed recap of those discussions:

The board did not discuss the employee and student policies separately, but rather had a joint discussion since the policies were very similar.  But there was more attention on the unique provisions in the student policy.

Beth Beebe asked a number of great questions and tried her best to drive discussion.  Here's some highlights:

  • Beth asked if these policies include measures that go farther than Title IX rules and state laws.  Tom Bennett asked school legal counsel David Holman his opinion - Holman did not think so - he will do some more validation.
  • Beth shared research about how gender-affirming policies such as pronoun usage and not sharing gender identity info with parents often leads to social transitioning and then in a high-percentage leads to medical transitioning which has a host of negative physical and psychological consequences.
  • In regard to parent notification on gender changes, the board (except for Beth) and Superintendent Melbye thought the policy called out parents' rights to know based on FERPA so that was adequate.  Unless the staff was concerned about physical or emotional abuse, they would have to report it to parents if asked.  Beth asked who had final say in the district on when the district would refuse to share identity with parents.  There was some debate but ultimately there was consensus this would fall to the assistant superintendent.
  • Mia Olson trotted out the predictable concern about what if parents won't accept or support their children's identity. There wasn't any response other than Dr. Melbye saying it would be based on mandated reporter guidelines.  
    ANALYSIS: No discussion on how to ensure staff do not report parent disapproval as abuse.
  • Nellie Korman asked why is this such a big deal since in her experience only about 1 in 150 students are non-binary?  And in almost all cases the parents notified the school about their child.    
  • Beth asked why the burden should be on parents to ask the school for information, the school should be getting approval from parents about any gender identity changes.  Matt Dymoke just referred back to Section V, Para B, item 3 that states parents have full access but did not really answer Beth's question.
  • Beth asked what if 30 girls object to having a male in their locker room?  Do they all need to find alternative accommodations?  Dymoke responded that yes they would.  Having the transgender student use a different facility would be discrimination according to Matt.
    ANALYSIS:  Counsel Holman did not jump in on this to affirm Matt's interpretation.  There are still different legal views on Title IX changes for bathroom access.  
  • Beth followed-up and asked how the district would accommodate such a large group. Dymoke just punted and said he trusted the district would find a solution.  

Further Analysis and Context

This article provides a quick summary on TItle IX changes:

At least 11 states have adopted laws barring transgender girls and women from using girls' and women's bathrooms at public schools.

The new regulation opposes those sweeping policies.

It states that sex separation at schools isn't always unlawful. However, the separation becomes a violation of Title IX's nondiscrimination rule when it causes more than a very minor harm on a protected individual, “such as when it denies a transgender student access to a sex-separate facility or activity consistent with that student’s gender identity.”

The laws are in effect in Alabama, Arkansas, Florida, Iowa, Kansas, Kentucky, North Dakota, Oklahoma and Tennessee. A judge’s order putting enforcement on hold is in place in Idaho. A prohibition in Utah is scheduled to take effect July 1.  Separate gender-neutral bathrooms *could* violate the new Title IX rules if they create a "sex-hostile" environment for students.   But if as Nellie says, there are 1 in 150 are trans students, maybe the one trans kid in school wants to use the gender-neutral.  How about the policy defaults to gender-neutral bathrooms unless the student can demonstrate "more than minimal harm"?

Post-Meeting Discussion 

Dr. Melbye was asked a few questions after the meeting:

First, he insisted the timing of the policy discussion had nothing to do with the recent Title IX ruling.  It just worked out that way.

Second, we pressed him on how he thinks the policy as written will prevent weaponizing pronoun usage situations and provide safeguards against worst-case scenarios with invasion of privacy.

We gave some concrete and real-world examples.  Although he acknowledged that these were legitimate scenarios, he retreated to his typical stance that "we will work with all sides in a situation to sort it out".

He was asked him how he would handle a Muslim girl objecting to a biological male in the locker room based on religious conviction.  What are you going to do when her parents threaten to sue, which is a certainty based on legal activity by Muslim parents  in other districts?  He acknowledged he was in a difficult position.  We interpret that as whoever the board decides has more rights. 

Next Steps

There will be much more to unpack in the coming weeks, especially as several states are suing to block these Title IX changes.   The legal uncertainty should be enough for the board to put this policy in the shelf, but this has been in the works for several months according to discussion at the study session.

Of particular concern is that our school board had their own gender inclusion policies drafted without having a model policy available from the Minnesota School Board Association. 

This tells us that the board intends to push through this policy regardless of the Title IX outcomes.

Supposedly there is going to be an audio recording of the study session that will be shared later.

The community MUST speak up at the upcoming listening sessions in order to force a public response from the board at subsequent meetings.