Ray Carter | March 16, 2022
Stillwater transgender policy shows need for school choice
Parents in the Stillwater school district report that students have been allowed to select bathroom facilities based not on their biological gender, but on the identity the student professes that day—even though the district has single-occupant bathrooms for gender-nonconforming students.
That has left parents feeling frustrated and powerless in the face of what they view as unresponsive school leadership with some families voicing growing support for enactment of school-choice policies that allow state education funding to follow a child to any provider, including private schools.
“I’m asking for boys to use boys’ restrooms, and for girls to use girls’ restrooms, and for nonbinary individuals to use the private restroom that has been set aside for them,” Stillwater parent Thomas Alsop said in a video posted to social media on March 10. “I know for a fact that today, at Stillwater Public Schools, there were girls who made a conscious decision when they woke up not to drink water, and not to drink water all day long until they got out of school, so they would not be forced to use a shared bathroom space.”
He noted there are also reports that teenage boys are “already taking advantage of this Pandora’s Box of reckless policymaking.”
Riley Flack, who has a daughter in middle school, said Stillwater school officials have given parents inconsistent explanations for the decision to allow biological males to use girls’ bathrooms.
“Depending on who you talk to, it came from different places,” Flack said. “My principal at the middle school said it comes from OSSBA (Oklahoma State School Boards Association) from two years ago. Somebody else cited to me that it comes from lawyers that the district uses out of Tulsa, and they’re citing some Eleventh Circuit Court opinion.”
Other parents say they have been told the policy is based on a ruling from the federal Fourth Circuit Court of Appeals.
Notably, Oklahoma is not in the jurisdiction of either the Fourth Circuit Court of Appeals or the Eleventh Circuit Court of Appeals.
In a statement, Barry Fuxa, PR & Communications Coordinator for Stillwater Public Schools, said the district’s restroom protocols are guided by the Stillwater Board of Education.
“In this regard, the Office of Civil Rights—the federal agency charged with safeguarding equal access to education—recognizes that Title IX protects all students, including students who are lesbian, gay, bisexual, and transgender, from harassment and other forms of sexual discrimination,” Fuxa said. “A framework for that policy was provided to the district by the law firm Rosenstein Fist & Ringold.”
The referenced Stillwater school policy prohibits “discrimination, harassment or retaliation” based on a range of categories including “gender identity or expression.” The policy does not expressly address access to bathroom facilities, but states that it applies to “any aspect of the district’s programs, including during school hours, extracurricular activities, school sponsored events, or outside of school hours if the conduct affects the education or working environment.”
“If it’s happening here, it’s happening in Edmond … and it’s happening everywhere,” Flack said. “I guarantee it.”
“If it’s happening here, it’s happening in Edmond … and it’s happening everywhere. I guarantee it.” -- Stillwater parent Riley Flack
Flack may be correct.
While the Oklahoma State School Boards Association (OSSBA) did not respond to a request for comment on whether it has provided guidance that endorses Stillwater’s bathroom policy, the organization’s members include districts from across Oklahoma.
OSSBA is also a member of the National School Boards Association, which called on federal law-enforcement officials to investigate parents under anti-terrorism laws, citing vocal parental opposition to a range of polices in schools nationwide. Unlike many similar entities, the OSSBA has never condemned the NSBA’s request and OSSBA maintains its NSBA ties.
The website of the Rosenstein, Fist and Ringold law firm that Fuxa said provided the framework for the policy cited by the district regarding bathroom access states that the firm’s clients include “over 300 public school districts.”
Meanwhile, Stillwater parents are concerned the district is not taking seriously the potential ramifications of its bathroom policy.
Alsop said school officials have said they will take administrative action should anything untoward occur in a school bathroom.
“It’s too late if it’s already happened,” Alsop said. “Imagine if it’s your daughter, your granddaughter, your son, your grandson, that is exposed to something in a bathroom that is supposed to be a safe place at a public school. … It will be too late. The damage will already be done.”
He noted there have been public reports in other states where transgender bathroom policies were associated with student assault.
In Loudoun County, Virginia, a student who reportedly identified as a transgender female at various times was accused of sex crimes against two female students. The student was eventually convicted of sexual assault.
Stillwater school officials say the majority of students who do identify as their biological gender do not have to share facilities with transgender students.
“We encourage families to visit with their students about their restroom options and decide on the best choice for their student,” Fuxa said. “Gender-neutral and/or private restrooms are available for use by any student who prefers to use them.”
But parents think that flips common sense on its head since it would require thousands of students to stand in line for one-stall bathrooms while the small share of gender-nonconforming students have ready access to multi-stall facilities. For the current school-year, the Stillwater school district reports having 5,994 students.
With Stillwater officials allegedly unresponsive to parent concerns, families in the district feel they have few choices under the current system. Under existing law, even if Stillwater experiences a mass exodus of students, the school district would continue to receive state payments for the departed students for another year.
And many families could face significant financial challenges if they shift to homeschooling or private school.
“They feel like they are being pushed to the point to where they are going to have to pull their kids out,” said Stillwater parent Cody Benke. “But it just puts everybody in a bad situation, especially the ones that can’t afford to do it.”
“We looked at a Christian school in town, but it’s way too much money to send all of my kids,” Alsop said. “I could afford one of them, but not all three of them”
That has caused some parents to voice support for legislation that would allow funding to follow the student to any school chosen by a parent, including private schools. Senate Bill 1647, by Senate President Pro Tempore Greg Treat, would provide that option to Oklahoma parents. The bill currently awaits a vote from the full Oklahoma Senate.
Benke noted that having funds follow a student “takes the money” out of district officials’ hands and empowers parents.
“I think that would give the parents a lot more leverage,” Benke said.
Alsop similarly said a system where money followed the child “may be the best option.”
Alsop said school should be a safe place for all children, including those who do not conform to gender norms, but said school officials should account for the needs of all students, not just a small sliver.
“I’m good with a third option. That should be there for those kids,” Alsop said. “It doesn’t mean I condone their lifestyle, but I still want them to have a place where they’re not ridiculed, humiliated, bullied. But I don’t want their place to then infringe on my child’s place where my daughter’s afraid to even drink water and go to school because she might then be faced with something.”
“If this is allowed to occur,” Flack said, “what isn’t allowed?”
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.