Antoinette Konz

The Courier-Journal;

A Jefferson County high school finds itself embroiled in a debate over gender-identity and discrimination after complaints that a transgender student is being allowed to use the girls' bathroom and locker room.

A freshman student at Atherton High School who was born male but identifies as a female received permission from Principal Thomas Aberli to use the girls' facilities, prompting complaints from several students and "about a dozen phone calls from concerned parents."

Now, Aberli is taking the issue to the school's site-based council members, who will meet Thursday to discuss adding gender identity to Atherton's non-discrimination policy.

"I have a responsibility to ensure that all of our students and staff are treated fairly and justly," Aberli said in an interview with The Courier-Journal Tuesday. "At the same time, I also have a responsibility to educate our community on an issue that many are not familiar with and inform them about the rights of transgender individuals."

READ: Letter to JCPS about Atherton High transgender policy

READ: How other JCPS schools deal with transgender students

The incident has re-opened the debate about whether Jefferson County Public Schools should explicitly include transgender students and employees in the district's non-discrimination policy — a step the board so far has chosen not to take.

The district's policy states that harassment and discrimination is prohibited because of an individual's age, color, disability, marital or parental status, national origin, race, sex, sexual orientation, political opinion or affiliation or religion — but it does not include gender identity.

"This is something that we have discussed before, but it never made it out of the committee," said Linda Duncan, a school board member who serves on the board's policy committee. "Our concern in the past has been over the inability to protect these children from harassment — we don't want to make a promise that we can't guarantee, so we backed away from it."

School board member Carol Haddad said the school board is against "any kind of harassment and discrimination."

"I think when you start categorizing students, you start leaving people out," she said. "I think the policy we have now covers everyone and everybody."

But Chris Hartman, director of the Louisville-based Fairness Campaign, said the school board needs to specifically include transgender individuals in the policy.

"This is a clear case of policies and laws having to catch up with society and the acceptance of LGBT people across the board," said Hartman, whose organization works to end discrimination on the basis of sexual orientation and gender identity.

Duncan said backing away from establishing a district-wide policy doesn't mean that schools are ignoring the rights of transgender students. And she added that the policy committee will be revisiting the issue again later this year.

"Our schools have been dealing with this for years and have made individual accommodations," she said. "This is a big issue, but we can't just open up all of our restrooms to the opposite sex. We need to be careful so that we are protecting the rights of everyone."

The controversy comes nearly two weeks after the U.S. Department of Education Office for Civil Rights issued guidance under its Title IX programs extending federal civil-rights protections to transgender students. However, it doesn't offer specific advice on the use of school facilities.

According to a 2012 article published by the National School Board Association Council of School Board Attorneys, there have been multiple court rulings across the nation addressing equal access for transgender students.

In the article, it states the issue is "problematic because it places school boards in a position of balancing the rights of transgender students to freedom from discrimination and expression, with the rights of other students and parents to freedom of religion and expression, among others."

The issue at Atherton was brought to Aberli's attention about a month ago when the freshman student asked for permission to use the school's female bathrooms and locker rooms.

"We have two facilities for all female students to use," Aberli said. "Initially, the student was allowed to use both facilities. However, in addressing concerns raised by parents and students, I wanted to respond to those concerns, so at this time, the student is only being allowed to use one of the two restrooms."

As of Tuesday, Aberli said he's met with seven students who brought their concerns to him.

"Everyone has been cordial and respectful," he said. "My perception is that our staff is very supportive of this and that the culture of our school reflects the diversity and differences of our population. Everyone deserves to be treated with respect."

But the situation has ignited a firestorm among some among parents and community members.

Clint Elliott, a Louisville attorney with the Christian-based legal group Alliance Defending Freedom, asked the school board Monday night on behalf of several parents to overturn Aberli's decision granting the student access to the girls' facilities.

"Imagine this scenario — a transgender student, a biological boy who decides that he wants to identify with the female gender, and yet he acknowledges that he has a girlfriend and is sexually attracted to girls," Elliott said. "Are parents supposed to be OK with allowing such boys to use the girls' restroom and locker room facilities?"

Elliott argued that Title IX "certainly doesn't require opening up opposite-sex facilities."

"(This is) a violation of parents' rights regarding the oversight of their children and educational environment of their children and it is certainly a violation of a student's rights to privacy," he told board members. "What about those girls and their rights to privacy and safety? What about the first amendment rights of all students?"

Other parents and students have rushed to defend the student.

Lorenna Cooper, a junior at Atherton and a member of the school's Gay Straight Alliance, said the student is a friend of hers who has "fought exceptionally hard for acceptance."

"One of the big issues people are having is due to the fact (she) is bisexual and currently has a girlfriend, one she has been with since before coming out as being transgendered," Lorenna said. "Some people believe she is lying about being transgendered as some sort of attempt to get closer to girls and to harass female students, which is far from the case. She is one of the sweetest, most genuinely wonderful girls I have ever met, and there is no reason for all of the hate and distrust she has received."

Hartman said he applauds Atherton's actions, saying the school is "moving in the right direction." But Hartman said he questions why the student can only use one of the school's female restrooms.

"On the surface, it doesn't really make any sense," he said. "If she is being allowed to use one restroom, why shouldn't she be allowed to use both bathrooms?"

Libby Cooper, Lorenna's mother, said she agrees.

"She should be able to use both restrooms, she shouldn't be restricted," Cooper said.

Aberli said, as of right now, it's his decision to allow the student to use only one of the female bathrooms. But he is asking parents, students and community members for feedback by completing an online survey.

He said all responses will be printed, provided to the school council members and submitted into the record at Thursday's school council meeting, which will be held at 2:45 p.m. in the auditorium and is open to the public.

Reporter Antoinette Konz can be reached at 502-582-4232 or @tkonz on Twitter.

Transgender defined

Someone whose personal idea of gender does not correlate with his or her sex at birth. It is an umbrella term that includes people who are transsexual, cross-dressers or otherwise gender non-conforming. Not all people who consider themselves transgender undergo a gender transition.

Take the survey

Atherton High School is asking parents, students and community members for feedback on its discrimination policy for transgender students by completing an online survey at www.surveymonkey.com/s/Atherton-Gender-Identity.