Education

Hofmeister: School transgender bathroom policies mandatory

April 7, 2022

Ray Carter

A spokesperson for State Superintendent of Public Instruction Joy Hofmeister says Oklahoma public schools must allow students to use the bathroom of their choice, based on the student’s self-professed gender identity, and cannot restrict bathroom access based on biological gender.

Carrie Burkhart, executive director of communications for the Oklahoma State Department of Education, said the agency recently affirmed to Stillwater Public Schools that “legal precedent has addressed the need for equal access, including facilities.”

She cited a decision handed down in 2020 by the Fourth Circuit Court of Appeals that held that a school district could not prohibit transgender persons from using bathrooms that align with their gender identity and noted the U.S. Supreme Court declined to hear an appeal of that case.

The statement was issued following conflicting reports in the Stillwater school district regarding Hofmeister and the Oklahoma State Department of Education’s interpretation of laws governing student access to sex-segregated facilities, including bathrooms.

Hofmeister is currently a candidate for governor, running as a Democrat after having switched parties.

The Stillwater district has faced pushback from parents after a transgender girl—a male who identifies as a female—began using the middle-school girls’ bathroom, causing reported distress for some female students.

As recently as Jan. 8, 2021, a memorandum from the U.S. Department of Education Office of the General Counsel stated schools were not prevented from having separate bathrooms facilities based on biological gender, despite a 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, Georgia that held discrimination based on sex includes discrimination based on gender identity when it comes to employment-law issues.

The U.S. Department of Education memo noted that federal Title IX law, which applies to schools that receive any federal funding, contains “numerous exceptions authorizing or allowing sex-separate activities and intimate facilities” based on biological sex as that phrase was understood in “the plain ordinary public meaning” of the time the law was enacted.

However, the Biden administration has since issued guidance indicating that schools must allow student access to bathroom facilities based on gender identity, not biology.

Oklahoma Attorney General John O’Connor recently joined with 13 other state attorneys general in sending an April 5 letter to the U.S. Department of Education opposing that change. The attorneys general wrote that redefining discrimination “on the basis of sex” to include gender identity “would plainly exceed the Department’s rulemaking authority” and ignores the fact that the “ordinary public meaning of the term ‘sex’ at the time of Title IX’s enactment could only have been biological distinctions between male and female.”

Some entities have apparently encouraged Oklahoma public schools to authorize bathroom access based on gender identity, not biology, for years, preceding the court decisions now cited to justify those policies.

A presentation on “Transgender Students & Schools,” provided at the Oklahoma State School Boards Association’s Annual Conference in 2016, indicated that school officials should adopt new transgender policies that could allow access to bathrooms based on gender identity even though the presentation acknowledged there was no state law “specifically referring to gender identity or expression.”

The presentation noted that “Common Student/District Issues” associated with transgender policies included restroom access, overnight trips, locker rooms, and dress codes.

Among “Recommended Actions and Practices to Minimize Legal Disputes” was adoption of policies “that include gender expression or identity” and “age-appropriate education of students.”

That presentation was provided by Karen L. Long, a shareholder and partner with Rosenstein, Fist & Ringold. According to its website, the Rosenstein, Fist and Ringold law firm’s clients include “over 300 public school districts.” Stillwater Public Schools is among them, and a spokesman for the district has previously said the “framework” for the school’s bathroom policy came from Rosenstein, Fist & Ringold.