Local backdown, federal pushback

CCSD1 appears to back down; state, federal officials push back on transgender student guidance

By Trudy Balcom

tbalcom@rawlinstimes.com

RAWLINS — Thursday showed a possible shift in position from Carbon County School District No. 1 and pushback from state and federal officials regarding a federal guidance issued to schools for transgender students.

Carbon County School District No. 1 sent out an update to its staff at 9 a.m. Thursday morning, which appears to contradict a Wednesday email that school staff received regarding transgender student policies.

Thursday’s memo, sent by Superintendent Fletcher Turcato to all employees, was written by the district’s legal counsel, John Kuker. The statement reads as follows:

“On behalf of Superintendent Turcato and the Board of Trustees, we would like to clarify any confusion or miscommunication associated with Mr. Turcato's recent email concerning transgendered students and related matters.

“To be certain, CCSD1 will continue its practice of strict adherence to all applicable state and federal laws regarding student discrimination including those that afford legal rights to transgendered students. Mr. Turcato intended only to reiterate the District's existing position concerning these issues and not create new issues.

“To the extent any of his personal statements appeared to have expressed District actions that would be at all legally improper, they were obviously in error. Any further questions on these issues may be directed to Mr. Turcato.”

The message seems to indicate that that CCSD1 plans to follow a federal guidance issued jointly by the U.S. Department of Education and the U.S. Department of Justice on May 13 concerning how schools must treat transgender students.

However, a call to Turcato’s office to clarify the district’s position relative to his statement made Wednesday was not returned.

Meanwhile, state and federal officials continued to question the legal status of the federal guidance.

“The guidance addresses the civil rights of transgender students, but it has an impact on every student,” State Superintendent of Public Instruction Jillian Balow said Thursday.

“It’s not lawful, perhaps not constitutional, to create law through a guidance,” Balow said, noting that North Carolina is challenging the Justice Department regarding transgender civil rights.

She wasn’t alone in her thoughts.

Twenty-five members of Congress, including Wyoming senators Mike Enzi and John Barrasso, sent a letter Thursday to Attorney General Loretta Lynch and Secretary of Education John King, which also called into question whether a guidance document has the effect of law.

“It is not appropriate for a federal executive agency to issue ‘guidance’ for every school as if it were the law,” the letter stated.

“Article I of the U.S. Constitution gives Congress the exclusive right to make laws,” the letter stated. “In some cases, executive agencies may issue regulations, but these regulations must be authorized by law and subject to strict procedural requirements.”

The federal guidance stated that a “school may not require transgender students to use facilities inconsistent with their gender identity or to use individual user facilities when other students are not required to do so.”

The guidance is based upon Title IX, a 1972 federal law that prohibits “sex discrimination in educational programs or activities operated by recipients of Federal assistance.”

Balow acknowledged failure to follow the policy could result in loss of federal school funding. In 2013, the state received around $230 million in direct federal funds.

Balow also recognized that transgender students face challenges, saying “the transgender youth community is vulnerable” and added she didn’t question the overall value of Title IX law.

“Title IX really set a course for us to be cognizant of the unique needs of all students,” she said.

But when asked if the path towards the civil rights of transgender community is the same as the path used by women and African Americans — federally mandate — Balow said she couldn’t comment.

“This is a lot less about Title IX interpretation,” she said. “What it boils down to for me is the best decisions are made at the local level.”

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