A spokesperson for state Superintendent of Public Instruction Joy Hofmeister said Oklahoma public schools must allow students to use any bathroom they choose, based on the student’s self-declared gender identity. the student, and cannot restrict access to the washroom based on biological sex.
Carrie Burkhart, executive director of communications for the Oklahoma State Department of Education, said the agency recently told Stillwater Public Schools that “legal precedent has addressed the need for equal access , including facilities”.
She cited a 2020 decision by the Court of Appeals for the Fourth Circuit that ruled that a school district cannot ban transgender people from using bathrooms that match their gender identity and noted that the United States Supreme Court had declined to hear an appeal of this case.
The statement was released following conflicting reports in the Stillwater School District regarding Hofmeister’s and the Oklahoma State Department of Education’s interpretation of laws governing student access to segregated facilities by sex, including bathrooms.
Hofmeister is currently running for governor, running as a Democrat after switching parties.
Stillwater District has been pushed back by parents after a transgender girl – a man who identifies as a woman – started using the college girls’ bathroom, causing reported distress among some female students.
As recently as January 8, 2021, a memorandum from the U.S. Department of Education’s Office of the General Counsel said schools were not restricted from having gender-segregated bathrooms, despite a 2020 U.S. Supreme Court decision in Bostock v. Clayton County, Georgia that discrimination based on sex includes discrimination based on gender identity when it comes to matters of labor law.
The U.S. Department of Education memo noted that federal law Title IX, which applies to schools that receive federal funding, contains “numerous exceptions permitting or permitting intimate sex-separated activities and facilities” based on biological sex as that phrase was understood in “ordinary ordinary public sense” at the time the law was enacted.
However, the Biden administration has since issued guidelines stating that schools must allow students access to restrooms based on gender identity, not biology.
Oklahoma Attorney General John O’Connor recently joined 13 other state attorneys general in sending an April 5 letter to the US Department of Education opposing the change. The attorneys general wrote that redefining “sex-based” discrimination to include gender identity would “clearly exceed the Department’s regulatory authority” and ignore the fact that “the ordinary public meaning of the term ‘sex’ in when Title IX was enacted could only be biological distinctions between male and female.
Some entities apparently encouraged Oklahoma public schools to allow bathroom access based on gender identity, not biology, for years, preceding the court rulings now cited to justify those policies.
A presentation on “Transgender Students and Schools,” presented at the Oklahoma State School Boards Association‘s annual conference in 2016, indicated that school officials should adopt new transgender policies that could allow bathroom access based on gender identity, although the presentation acknowledged that there was no state law “specifically referring to gender identity or expression”.
The presentation noted that “common student/district issues” associated with transgender policies included restroom access, overnight travel, locker rooms, and dress codes.
Among the “recommended actions and practices to minimize legal disputes” was the adoption of policies “that include gender expression or identity” and “age-appropriate student education”.
This presentation was provided by Karen L. Long, shareholder and partner of Rosenstein, Fist & Ringold. According to its website, the Rosenstein, Fist and Ringold law firm’s clients include “more than 300 public school districts.” Stillwater Public Schools is one of them, and a district spokesperson previously said the school’s restroom policy “framework” came from Rosenstein, Fist & Ringold.