Feds Forcing Public Schools to Adopt 'Nondiscrimination' for Transgender Teachers and Students

By Lauretta Brown | May 7, 2015 | 2:52 PM EDT

(CNSNews.com) – The U.S. Department of Education is demanding that the Fairfax County Public Schools, in the Virginia suburbs just outside Washington, D.C., "revise their non-discrimination policies to include gender identity" or risk losing the federal funds they receive for their schools.

The "nondiscrimination" would apply to transgender students and teachers.

The Fairfax County School Board is scheduled to vote on the new policy, a revision of its existing non-discrimination rule, Policy 1450, on Thursday,  May 7.

The “Gender Identity” or transgender policy is explained in a May 6, 2015 memo issued by Steven A. Lockard, the deputy superintendent of the Fairfax County Public Schools.

It states: “The Office of Civil Rights (OCR) of the U.S. Department of Education is requiring that school divisions 1) revise their non-discrimination policies to include gender identity, and 2) hire a consultant to advise on revisions to regulations and, more generally how school divisions should handle individual cases of transgender students. If the School Board amends Policy 1450, we will be able to tell them that have already done the two things that OCR is requiring.”

“If FCPS refuses to amend its policy, OCR has the right to recommend the termination of federal funding to FCPS,” reads the memo from Superintendent Lockard. It then notes that the City of Alexandria Public Schools and the Arcadia School District in California were investigated by the OCR and had to enter into resolution agreements with the OCR over the transgender policy.

Given those cases, Lockard states: “We see no reason to conclude that OCR would treat FCPS any differently than it has Arcadia or Alexandria in its requirement to amend the discrimination policy to include ‘gender identity.’”

The May 6 memo presents several basic questions and answers about the transgender policy.

One question posed is this: "What effect does approving the language have on immediate operational and personnel implementation--e.g., if a teacher comes to school the following Monday dressed and identifying with the opposite gender and the language has been passed--then what?"

Lockard says: “We will work with the teacher, HR, and Division Counsel on a plan for that teacher. The teacher would not be allowed to immediately use the bathroom of their choice. As a practical matter, nearly all faculty bathrooms in our schools are single-stall bathrooms such that only one person at a time may use them.”

As for students who claim to be transgender, the May 6 memo reads: “At FCPS currently, there is a vetting process that IS and DSS go through when a student or his parents claim that the student is transgender, to ensure that the claim is legitimate and made in good faith. That prevents the scenario of a biological male student walking into school on a Monday, claiming he’s transgender and identifies as a female, and being allowed to use the girl’s bathroom immediately.”

As the memo explains, the Office of Civil Rights (OCR) in the federal Department of Education, headed by Education Secretary Arne Duncan, “has advised that it considers transgender students to be protected from sex-based discrimination under Title IX.”

The Office of Civil Rights defines a transgender student, as quoted in the memo,  as “a student who consistently and uniformly asserts a gender identity different than a student’s assigned sex, or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student’s core identity.”

In a  May 6 interview with CNSNews.com, FCPS Board Member  Elizabeth Schultz spoke about the “Gender Identity” memo from FCPS Deputy Superintendent Steven Lockard.

“What authority does the Office of Civil Rights or the Department of Justice or the Department of Education have to withhold federal funds, if local school boards across the United States of America don’t implement as special protected classes under non-discrimination clauses -- you know, gender identity and or transgender--and then where does it stop?” Schultz asked.

“If that is in fact the case, that I am being compelled under threat of withholding federal education funds to the children in Fairfax County unless I pass policy that includes language around gender identity and transgender special class protection, then I think that I ought to have possession of that documentation before I make a vote,” She said.

Schultz e-mailed the general counsel and superintendent asking that, “if FCPS is being ‘compelled’ by the federal government to add ‘gender identity/transgender’ to its non-discrimination policy, why did this Policy 1450 change come before the Board from one Board Member as an individually initiated Forum topic rather than advising the Board of a federal requirement to change our policies as the Superintendent?”  

She continued, “If the Department of Justice or Department of Education is using OCR to ‘compel’ local school boards around the country to incorporate this language under Title IX, has there been any written documentation presented to FCPS by OCR (or DOJ or Department of Ed) regarding this requirement?”

“Where, specifically, has the federal government--DOJ, Department of Education or OCR--enumerated in federal law that incorporation of ‘gender identity/transgender’ into non-discrimination language is tied to federal education funding–or, absent such incorporation, withholding thereof – to local school boards?” Schultz inquired of the general counsel.

Schultz also provided CNSNews.com with an e-mail to House Rep. Barbara Comstock (R-Va.) requesting clarification on the matter as the school board is within her district.

“I am unaware of any federal (or state) law or court decision mandating local school boards to adopt specific ‘gender identity/transgender’ non-discrimination language policies and compel the hiring of consultants to review practices around ‘gender identity/transgender’ issues with students and employees, never mind such laws or cases tying compliance with retention or loss of federal funding,” Schultz said in her e-mail to Rep. Comstock. 

She also asked Comstock to “request an authoritative response from the Office of Civil Rights of the Department of Justice, and/or the Department of Education, to ascertain whether or not the federal government has such authority to direct the actions of local school boards.”

Schultz said that she was “mystified” by the guidance the board members had received on this topic, asking: “The federal government’s going to come and take our children’s lunch money, if we don’t comply with gender identity and transgender language in school board policy?”

In a May 7 letter to the parishioners of the McLean Bible Church, one of the largest evangelical churches in the country (and in Fairfax County) with more than 13,000 adult worshippers each week, Pastor Lon Solomon said the FCPS “had made no effort to engage parents or advise the public what this means for student or employee safety, or for parental rights,” adding that the policy affects all students, from pre-school to 12th grade, and all school employees.

“Should this pass, it is my understanding that everything from locker rooms to bathrooms will potentially be open for children and adults who feel that their inner sexuality does not match their outer, God-given, physical sexuality,” said Pastor Solomon.

“This is both shocking and morally and spiritually repugnant,” he said. “It demands a response from everyone in our church family (living in Fairfax County) who loves Christ and the truth of His Word.”