Ray Carter | April 7, 2022

Stillwater transgender-bathroom policy in place ‘for years’

Ray Carter

Amidst pushback from parents about Stillwater Public Schools’ policy of allowing students to choose the bathroom facility that aligns with their self-proclaimed gender identity and not biology, the school’s superintendent recently announced that policy has been in place “for many years.”

Stillwater Superintendent Gay Washington also said the school’s bathroom policy is the result of a federal dictate and based on guidance from the Oklahoma State Department of Education (OSDE), which is headed by State Superintendent of Public Instruction Joy Hofmeister.

But that contradicts what OSDE officials reportedly told one parent in the community as well as Hofmeister’s prior comments on the topic.

In a recent email sent to parents, Stillwater Superintendent Gay Washington said the district has allowed students to choose bathrooms based on gender identity since 2015, writing that transgender individuals “have been using the restroom of their gender identity in SPS for many years.”

Washington claimed the federal Office of Civil Rights, which has regulatory authority over education entities that receive federal funding, including Stillwater, has declared that the federal Title IX law prohibits “harassment and other forms of sexual discrimination” and requires that schools allow “individuals to use the restroom corresponding to their gender identity.”

Washington’s email also cited “several legal provisions and court decisions provided to the district by the Office of Legal Services at the Oklahoma State Department of Education that explain why all public school students are entitled to equal access to educational programs, which includes facilities.”

However, during the public-comment portion of the March 8 meeting of the Stillwater school board, Edward Gallegos said the State Board of Education and the office of State Superintendent of Public Instruction Joy Hofmeister had been contacted about the issue. He said Hofmeister’s office “directly confirmed, through her chief of staff, that there is no federal rule, regulation, or guideline that requires a school to allow biological males to use a female bathroom. Furthermore, they confirmed that because there is no rule or guideline in place, such a decision is a matter of local control by the school board and school administration.”

Hofmeister has previously said there is no dictate requiring schools to allow students to choose bathroom facilities based on gender identity.

In August 2019, the Oklahoma State Department of Education sent a newsletter to Title IX administrators in state school districts that focused on “best practices” to create a “safe and valued climate for LGBT students.” Among other things, the newsletter recommended that Oklahoma schools allow students to select bathrooms based on gender identity rather than biological gender and informed school officials they should “never reveal” a student’s sexual orientation or gender identity without the student’s permission “even to the student’s family.”

However, after the newsletter received attention outside of school walls, Hofmeister distanced herself from its contents. In a letter sent to state Rep. Justin Humphrey, R-Lane, Hofmeister described the agency newsletter as a document that simply “provides information and various perspectives regarding the federal civil rights law.”

“We conceded that the newsletter should have made clear that the recommendations were proposed by a non-governmental entity and not the OSDE,” Hofmeister wrote.

Hofmeister added that the “material in question was in no way a directive nor an endorsement.”

An OSDE spokesperson separately confirmed that the department’s material on transgender bathrooms came from the Southern Poverty Law Center (SPLC). The SPLC has long been criticized for labeling religiously conservative organizations as “hate groups” comparable to the Ku Klux Klan.

The Oklahoma Council of Public Affairs sent a request for comment to Hofmeister’s office, asking if she now believes transgender bathroom policies are legally mandated or remain an issue subject to local control.

As of publication, no response had been provided.

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

The court decisions that Washington said require the school to allow transgender students to use whatever bathroom they prefer, and which Washington said were provided to the school by the Oklahoma State Department of Education, include rulings from the U.S. Court of Appeals for the third, fourth, and seventh circuits. None of those courts has jurisdiction over Oklahoma, meaning those rulings are not binding for Oklahoma schools.

Washington’s email also referenced a 2020 U.S. Supreme Court ruling in Bostock v. Clayton County, Georgia that held that discrimination on the basis of sex legally includes discrimination based on gender identity, and a related ruling from the U.S. Court of Appeals for the Tenth Circuit, which does have jurisdiction over Oklahoma.

But Bostock dealt with employment issues and Title VII of the Civil Rights Act of 1964. The Tenth Circuit ruling was also related to discrimination in an employment context, not education.

As recently as Jan. 8, 2021, a memorandum from the U.S. Department of Education Office of the General Counsel stated that Bostock was a narrow decision applying only to Title VII and did not apply to Title IX schools, noting that Title IX “contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately on the basis of biological sex or for members of each biological sex.”

The memo stated that officials at the U.S. Department of Education believed “the plain ordinary public meaning of the controlling statutory and regulatory text requires a recipient providing ‘separate toilet, locker room, and shower facilities on the basis of sex’ to regulate access based on biological sex.”

However, the Biden administration has since issued guidance saying it would apply Bostock to public schools, effectively declaring the administration would force schools to allow student access to bathroom facilities based on gender identity, not biology.

On April 5, a coalition of 14 state attorneys general, including Oklahoma Attorney General John O’Connor, sent a letter to the U.S. Department of Education stating that they “strongly urge the Department not to extend Title IX by regulatory fiat to cover discrimination on the basis of gender identity. This would plainly exceed the Department’s rulemaking authority under Title IX. Title IX prohibits discrimination ‘on the basis of sex’ in any education program or activity receiving Federal financial assistance. Statutory and regulatory text and structure, contemporaneous Supreme Court authorities, and the U.S. Department of Education’s historic practice demonstrate 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. A person’s biological sex is relevant for Title IX considerations involving athletics, and distinctions based on sex are permissible (and may be required) because the sexes are—simply—not similarly situated.”

The issue is expected to eventually land in the court system.

In her email, Washington also declared that “these community conversations have been hurtful to many of our students” and provided a list of “crisis support services for LGBTQIA youth.” LGBTQIA stands for lesbian, gay, bisexual, transgender, queer/questioning, intersex, and asexual/aromantic/agender.

But critics of Stillwater Public Schools’ bathroom policy have warned the policy is causing emotional distress for many young girls who now find themselves in the bathroom with a biological male.

During the Stillwater Board of Education’s March 8 meeting, Aaron Means told board members, “We must protect our children, and we should not sacrifice the emotional health and safety of our daughters when they come to school.”

Gallegos noted reports that some female students at Stillwater Middle School “are not using the bathroom during school hours due to biological males being allowed to access and use the female bathrooms.”

“These young ladies, ages 11 to 13, are at a pivotal age when their bodies are changing and they require unfettered access to the female bathrooms and should not be made uncomfortable in doing so,” Gallegos said.

Supporters of the transgender bathroom policy also spoke at the meeting, and indicated such policies are becoming routine in school districts across Oklahoma.

Irissa Baxter-Luper defended the bathroom policy, telling board members she is coordinator of LGBTQ Affairs for Oklahoma State University “where I provide LGBTQ inclusion trainings not only for Oklahoma State University, but across the state, including to Moore, Mustang, and Yukon public school administrators.”

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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