After three and a half hours of trustee discussion and public comment, the board decided to postpone voting on a policy that would have banned trans students from using bathrooms and locker rooms that match their gender identity if it is different from the sex they were assigned at birth. It would have also prevented them from playing on sports teams that align with their gender identity.
Board President Susan Jansen, on advice of board legal counsel, came to the conclusion that the policy under discussion was too broad to pass legal scrutiny, under state and federal law.
“I consider this to be unsettled law. So, let’s go back to the drawing table,” she said. “We’ll bring it back and make it a better, more workable policy that everyone will understand and there will be no ambiguity in that.”
Most of the trustees are hoping to create a policy that can pass a strict scrutiny test, a principle that holds any law that infringes on a constitutional right must achieve a compelling state interest, be narrowly-tailored, and use the least restrictive means to do so.
The board voted 6-1 to send the agenda item back. Only District 5’s Linda Gilkerson voted against the motion. She opposes the proposed policy.
ACLU of Nevada Executive Director Athar Haseebullah promised to sue DCSD on behalf of trans students if it passed this policy arguing that it would be illegal under the Nevada Constitution and federal law.
“We’re prepared to defend their liberties and their rights because we recognize that their school board, at this point, doesn’t have their best interests at hand and every student in Nevada should be entitled to a safe and respectful learning environment,” he said.
At the meeting, public commenters mostly agreed with the policy, citing concerns over perceived advantages trans women athletes have over cis women athletes and bathroom safety for cis women.
Those perceived advantages vary widely on a case-by-case basis, and in lieu of specific data, blanket bans on trans athlete participation won’t necessarily even a playing field that already tilts towards athletes of higher socioeconomic status.
As for bathroom safety, a policy restricting access is much more likely to increase attacks on trans students than it is to prevent them against cis ones. There have been no reported incidents of DCSD trans students attacking cisgender peers.
Those voicing their opposition noted the othering effects the policy could have on the mental health of trans students and said bullying against trans students would rise.
Jose Davila IV is a corps member for Report for America, an initiative of the GroundTruth Project.