The Missouri School Boards Association originally recommended schools allow transgender students to use the bathroom and locker room they identify with, but it swiftly rewrote the policy, leaving the decision up to districts.
The sudden change came after a Virginia district court ruled it did not accept the U.S. Department of Education's interpretation of Title IX to include "gender identity," allowing transgender students to use the bathroom consistent with their gender identity.
"Title IX expressly allowed schools to maintain separate bathrooms based on sex, and therefore, (the) school board did not violate Title IX by limiting a transgendered student to using (the) bathroom consistent with his birth sex," according to the G.G. vs. Gloucester County School Board district court ruling.
Title IX protects students from discrimination based on gender but has never defined what gender means and whether gender identity is protected by Title IX. The federal declaration signed by the departments of Justice and Education - carried out through an executive order from the president - attempts to change that.
The guidance states Title IX's prohibition of discrimination on the basis of sex includes transgender students who identify with the gender opposite to their biological sex and says schools must allow them to use the bathroom and locker rooms consistent with their gender identity. The declaration is not enforceable by law but carries an implicit threat of loss of funding for districts that don't comply.
The Virginia court case involving high school student Gavin Grimm, who was born female but has undergone hormone therapy and identifies as male, and the Gloucester County School Board has drawn nationwide attention. Grimm appealed the district court's ruling, and the U.S. Court of Appeals Fourth Circuit Court favored him, allowing him to use the men's bathroom. Another appeal was filed, and the case is now at the Supreme Court. Now Grimm hangs in limbo until the Supreme Court makes a decision.
MSBA changed its policy in May on the heels of the district court decision that sex means biological sex, and the state school boards' association opted not to make an explicit recommendation to school districts, said Kelli Hopkins, associate executive director with MSBA.
The News Tribune published a story last month outlining how local districts are responding to the federal guideline. The story cites MSBA's original policy that recommends transgender students be allowed to use the bathroom they identify with; that policy is no longer in use.
When searching for MSBA's recommendation, the only MSBA document that can be located is the association's original policy, an error Hopkins said was the fault of MSBA.
Currently, MSBA offers two policies districts can chose to adopt, Hopkins said. Until there's a law - not only a guideline - requiring districts to allow transgender students to use the bathroom they choose, MSBA will hold off on an explicit recommendation.
"At this point, when they call, we tell them to deal with each student individually," Hopkins said. "Any policy you adopt will automatically irritate one side or another."
The first version of the policy allows transgender students to use the restrooms associated with their gender identities or a single-user bathroom, if that's what the student requests. It encourages the guardian and the student to notify a district administrator or counselor of the student's transgender status and discuss the needs of the student.
The second version provides accommodations for transgender students but "does not go so far as to permit a transgender student to use restrooms and locker rooms associated with the student's gender identity," according to the policy. The guardian and the student are encouraged to meet with a district official and discuss the student's needs and accommodations.
The Jefferson City Public School and Blair Oaks School districts officials have said they will work with students on a case-by-case basis and did not explicitly say whether they will allow students to use the bathroom consistent with their gender identity.
JCPS Superintendent Larry Linthacum said in previous years the district has allowed transgender students to use the bathroom in the nurses' office, an accommodation that worked for those students.
The crux of the controversy is who can define sex as it is listed under Title IX, Hopkins said, a battle that has yet to be settled.
In a court case filed Aug. 21, Texas v. United States, 13 states have joined to challenge the federal guideline, arguing the definition of sex was "improperly redefined," and sex used in this context means biological sex.
There is currently no Missouri or federal statute that protects transgender people, Hopkins said, so MSBA will wait until there is a clearly defined law.