Beth Ann Rosica: Feds declare bathroom policies illegal — 63 percent of Philly-area schools could be next

A major civil rights ruling dropped Friday as the U.S. Department of Education found that allowing students to use bathrooms based on gender identity violates Title IX — placing many Pennsylvania school districts on notice.

The U.S. Department of Education’s Office for Civil Rights (OCR) announced the Title IX violations in five Virginia school districts as a result of its investigation. OCR determined that the school district policies “which allow students to access intimate, sex-segregated facilities based on the students’ subjective ‘gender identity,’ violate Title IX of the Education Amendments of 1972.”

In a press release, OCR Acting Assistant Secretary Craig Trainor said, “The Trump Administration will not sacrifice the safety, dignity, and innocence of America’s young women and girls at the altar of an anti-scientific illiberalism.” 

Broad + Liberty reported earlier this month on the number of Southeastern Pennsylvania school districts with similar policies allowing students to use the bathroom based on their gender identity.

Of the 62 school districts in Bucks, Chester, Delaware, Montgomery, and Philadelphia counties, 26 (40 percent) enacted a specific “transgender” policy that grants students access to the bathroom of their choice.

For example, Wissahickon School District, located in Montgomery County, has a policy entitled “Transgender and Gender Expansive Students” with this language:

“District students shall have access to facilities including all restrooms, locker rooms, changing facilities, or overnight facilities that correspond to their gender identity.”

In addition to the 26 districts with similar transgender policies, there are another thirteen (21 percent) that include “gender identity” as a protected status under Title IX, bringing the total of Southeastern Pennsylvania school districts out of compliance to 39 or a whopping 63 percent.

Based on OCR’s findings in the five Virginia school districts, the majority of local school districts are not compliant with Title IX and could be subject to consequences.

The Virginia districts have ten days to voluntarily agree to a proposed resolution settlement “or risk imminent enforcement action including referral to the U.S. Department of Justice.” The proposed settlement includes the following stipulations: 

“(i) Rescind the policies and/or regulations that allow students to access intimate facilities based on their ‘gender identity’ rather than their sex; 

(ii) Issue a memorandum to each Division school explaining that any future policies related to access to intimate facilities must be consistent with Title IX by separating students strictly on the basis of sex, and that Title IX ensures women’s equal opportunity in any education program or activity including athletic programs; and 

(iii) Adopt biology-based definitions of the words ‘male’ and ‘female’ in all practices and policies relating to Title IX.”

If these requirements are applied to Pennsylvania school districts, the majority of local schools will have to make substantial changes in both policy and practice. 

At least one local district may be impacted by this OCR investigation in the very near future. Local resident and former Great Valley School District board member, Bruce Chambers, filed an OCR complaint against the district in March for its “Transgender and Gender Expansive Students” policy.

Chambers asked the board multiple times to rescind the policy and thus far, it has not complied. It remains to be seen whether the latest OCR investigation and findings will influence the board’s decision.

“I have kept the Great Valley School Board advised of the actions by the Department of Education and the Department of Justice in regards to this issue,” said Chambers. “I have also told them I had filed the Civil Rights complaint against them. They have not responded directly to those emails, nor have they changed their policies.”

Another compounding issue centers around the conflict between state and federal law. The Pennsylvania Human Relations Commission (PHRC) expanded its definition of sex which includes gender identity. 

Meanwhile, despite Governor Shapiro’s belief that “trans women are women,” he is now dodging the question about whether boys should be allowed to compete in girls’ sports. 

WITF reported last week on comments made by Shapiro in reference to Senate Bill 9 aimed to protect girls’ and women’s sports by preventing boys from competing against them.

“Shapiro, despite using ‘extremist’ to describe lawmakers who support the bill, declined to say Tuesday whether he would veto SB 9 if it comes to his desk.”

The outlet quoted Shapiro as saying, “ It’s a hypothetical. The House isn’t moving that bill, and I haven’t reviewed it specifically.”

That statement is quite telling about Shapiro’s political manipulations. While he is technically correct that “it’s a hypothetical,” it is inconceivable that he has not specifically reviewed the bill; and the fact that he is now declining to say whether he will veto it is also an indication of his political maneuvering.

However, the most informative part of his statement is about the House not moving the bill. Shapiro set this up perfectly — from his perspective — to make sure the Democratic-controlled House committee does not vote on the bill so it dies in committee, thus never reaching his desk, allowing him to remain noncommittal on the issue.

While Shapiro may see this as a win for him politically right now, in the long game, his approach will likely be problematic, as almost 80 percent of Americans believe that boys should not be allowed to play in girls’ sports.

As of now, Shapiro comes up short in terms of protecting and supporting girls and women whether on the field or in the bathroom. Under his leadership, Pennsylvania continues to defy federal law, and it is only a matter of time before OCR opens investigations in more local school districts, and perhaps the entire state.

Beth Ann Rosica resides in West Chester, has a Ph.D. in Education, and has dedicated her career to advocating on behalf of at-risk children and families. She covers education issues for Broad + Liberty. Contact her at barosica@broadandliberty.com.