photo by: Peter Hancock

? Most Kansas State Board of Education members said Tuesday they oppose a recent directive from the Obama administration on the rights of transgender students in public schools, calling it an infringement on local control of Kansas public schools.

But the board stopped short of passing a formal statement calling on the governor and Legislature to take action challenging that policy, choosing instead to put that discussion off until next month.

The discussion came in response to a letter issued jointly last week by the U.S. Department of Education and Department of Justice, which said transgender students are protected by Title IX regulations that ban sexual harassment and discrimination in public educational institutions.

In particular, the letter said schools must treat transgender students consistent with their gender identity in the area of extracurricular sports and in their use of bathroom facilities.

photo by: Peter Hancock

Education Commissioner Randy Watson said schools that violate the policy could be vulnerable to litigation and could possibly lose federal funding.

Board member Ken Willard, a Hutchinson Republican, read a lengthy statement saying the federal policy violates the concept of local control and urging the governor and Legislature to take appropriate action, “to protect and defend the Kansas Department of Education, Kansas schools, their students and patrons from this unprecedented overreach of federal executive authority.”

If the state accepts the federal policy, Willard said, “it could be the veritable straw that broke the camel’s back and result in the destruction of traditional American public schools.”

Word of Willard’s statement spread quickly around the state.

“That was the ranting of a drama queen,” said Tom Witt, executive director of Equality Kansas, which advocates for LGBT rights. “The destruction of public schools in Kansas? Come on.”

Within the board, though, there was strong sympathy for making a statement in favor of local control. But some were leery about how it would be viewed politically.

“My biggest fear, if this passes, is that the Legislature is going to interpret it (as meaning) we support the bill they tried to pass last year, which I don’t agree with,” said board member Sally Cauble, R-Dodge City.

She was referring to a so-called “religious freedom” bill last year that would have allowed individuals and businesses to refuse to recognize or take part in same-sex marriages or relationships, if they objected based on deeply held religious beliefs.

In addition, though, bills were introduced in the 2016 session, known as “transgender bathroom” bills, that would have required students in public schools to use the restrooms corresponding to the gender on their birth certificates. It also would have allowed individuals to collect as much as $2,500 in civil penalties if they witnessed a person of one gender using a bathroom assigned to another gender.

Cauble offered a motion to table Willard’s proposal until the board’s next monthly meeting in June, which she said would give staff at the Department of Education time to review the federal guidelines and offer the board a legal opinion about what it means for the state board, as well as local boards of education.

But board chairman Jim McNiece, a Wichita Republican, said even that could have political consequences.

“Regrettably, the press and the people who are just opposed to just the transgender issue will take a vote to delay as, ‘Well, you support them,'” he said. “I think it’s naive to believe it’s not going to be taken in a political context and used to whatever level a person wants on either side of the issue. And we as a society are debating this right now.”

McNiece, a former school principal and coach, said he dealt with issues regarding transgender students several times in his career.

“I talked to other teachers and coaches and folks in the building, and solved it at the local level,” he said. “I found out that it actually takes place a lot more than people realize.

“The other thing I found out is just how miserable these kids are,” he said. “They’re bullied and tormented, and that’s part of it as well.”

Language in the Lawrence school board policy manual makes clear that transgender students are protected from such treatment under federal law. The district’s policy states that discrimination and harassment against any individual on the basis of several factors, including race, religion, sexual orientation and gender identity, is prohibited. The district also has several schools, including a handful at the elementary level, with single-occupancy, unisex bathrooms that are available for any student who prefers more privacy.

The Kansas State High School Activities Association has a long-standing policy regarding transgender students who participate in extracurricular sports. It states, among other things, that transgender students may participate in sports based on the gender with which they identify, but that the gender identity must be “bona fide” and cannot be made for the purpose of gaining an unfair competitive advantage.

It also recommends, but does not require, that schools review medical documents to support a transgender student’s claim, including “length and duration of hormonal treatments, sexual re-assignment surgery, psychological counseling, medical records, etc.”

The new federal policy, however, specifically prohibits schools from requiring medical documentation to verify a transgender student’s sexual identity.

Education Commissioner Randy Watson told the board there was no urgency to respond quickly because the 2015-2016 school year is now over and the 2016 legislative session has ended.

Willard insisted his motion was intended only to protect the right of the state and local school districts to resolve transgender issues locally, and he resisted efforts to delay a vote on his motion calling on the governor and Legislature to take action.

On a 6-4 vote, the board chose to table that motion, deferring it until its next monthly meeting in June.

Cauble and McNiece both voted in favor of delaying the vote, as did board members Carolyn Campbell, Janet Waugh, Kathy Busch and Jim Porter.

Willard, along with board members John Bacon, Steve Roberts and Deena Horst, voted against the delay.

McNiece said the item will be considered again when the board meets June 14 and 15.