ELKO – A policy requiring separate accommodations for transgender students was removed from a local school district policy to make it compliant with state and federal laws.
Elko County School Board of Trustees voted 5-2 to amend policy JDAD at Tuesday’s regular board meeting. It removed three paragraphs of text addressing gender non-conforming students’ use of school facilities and overnight accommodations, and high school athletics.
It also retitled the policy from “Gender Non-Conforming Students” to “Gender-Based Discrimination/Harassment/Bullying of Students Prohibited.”
Trustees Tammie Cracraft-Dickenson, Teresa Dastrup, Kieth Fish, Ira Wines and Brian Zeiszler voted to approve the changes, with Jim Cooney and Candace Wines voting against it.
It’s been more than a year since the school board revised the policy on March 26, 2019. The new revision was in light of a Feb. 20 decision by the 9th Circuit Court of Appeals in the case Parents for Privacy v. Barr, said Superintendent Todd Pehrson.
“Since the policy was adopted, it has become clear that some sections conflict with state and federal anti-discrimination law,” Pehrson said. “The Ninth Circuit held that the privacy rights of other students did not override the rights of transgender students to use facilities associated with their gender identities.”
The policy change also made the school district compliant with the state Public Accommodations Law, NRS 651, signed into law in 2011 by Gov. Brian Sandoval.
The law states that “all persons are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, national origin, disability, sexual orientation, sex, gender identity or expression.”
The Public Accommodations Law, coupled with the 9th Circuit ruling, made it clear the district was “currently in violation of state and federal laws,” board president Teresa Dastrup explained at the start of the meeting.
However, the policy is fluid, she noted, and could still be revised if the Supreme Court makes a ruling this summer.
“It is possible that the law may change in the future, and if that happens the board will look at changes to this policy in the future as well,” Dastrup said.
Cracraft-Dickenson, Dastrup and Zeiszler said they supported the change, explaining that the district needed to comply with the state and federal laws.
“I feel like this is probably the right thing to do for the board right now,” Dastrup said.
Cracraft-Dickenson stated the district should have been compliant with the state law much sooner.
“We’ve known we were out of compliance. We should have been planning how to address these issues years ago,” she said.
Instead of amending the policy, Trustee Candace Wines suggested the board should repeal the entire policy and draft a new one that allows “all students access to a private bathroom, if that’s what they choose, no matter who they are.”
Wines also referred to emails from some coaches who expressed concerns about students who could be changing clothes in a locker room in the proximity of a coach or teacher of the opposite sex.
“There were a lot of concerns … they may be set up in a position [for] lawsuits … and how that could come back on them as a liability and a problem,” Wines said.
The board received approximately 205 emailed comments ahead of the videoconference meeting.
About 12-15 supported the change, reported trustee Jim Cooney during the public comment section of the meeting.
“The overwhelming response was against changing the policy,” Cooney explained. “Everyone who submitted was very respectful towards all students, be they transgender or otherwise.”
Comments from the public also ranged from student safety on out-of-town trips for extracurricular and athletic events to suggestions of remodeling restrooms and changing areas to include unisex facilities.
The school district first adopted the policy in 2014 to prohibit staff and students from “discrimination and harassment against a student based upon the student’s gender identity or expression.”
Two years later, a Spring Creek Middle School transgender student’s request to choose which restroom and locker room to use was denied, resulting in an investigation by the Nevada office of the American Civil Liberties Union for violation of the student’s privacy rights.
In 2019, JDAD was passed in a 4-3 decision by the school board to update the policy, requiring restrooms, locker rooms, and other facilities to be designated for one gender with alternative facilities provided to students who identify as transgender.
Cooney said at Tuesday’s meeting the 2019 policy had been reviewed by legal counsel but he wasn’t “sure that [the lawyers] may have the right idea how to address this problem.”
He agreed with Wines to repeal the policy and start over from scratch but, “I think we may be backed into a corner right now, and that may not be an option we have.”
“The policy was vetted by our legal counsel, but they gave us the policy we wanted, not necessarily the policy that was compliant with state or federal guidelines or laws,” Cracraft-Dickenson added.
Greg Brorby, who is running against Teresa Dastrup for the District 4 seat on the school board, questioned why the board chose to take action on the item without legal advisement.
“My main concern is that the board had an agenda item to change a policy, and then voted on it without seeking legal advice regarding the Ninth Circuit Court’s decision,” he said in a statement to the Elko Daily Free Press.
“They seemingly acted based on their own opinion on what the court’s decision means to the school board,” Brorby continued. “The board should utilize the experts they have at their disposal when making their decisions.”
Dastrup told the Free Press on Wednesday that the policy “is a very sensitive issue.”
“I don’t agree with the law, but I have to take care of our district while still obeying the law,” she said. “I care about every student in this district as well as valuing the input and involvement of their parents and their education.”
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