There Is No Room in Oregon for Discrimination

by Kim Conolly

The Oregon Equality Act, known as SB2, aims to protect all citizens regardless of sexual orientation.

Brought before legislators by Representative Greg Macpherson and Representative Diane Rosenbaum in 2007, the intent of SB2 was noble and the law enacted.

Yet in 2016, the Oregon School Board Association (OSBA), education administrators in Dallas, Oregon, and their lawyers are interpreting SB2 to mean full inclusion for transgender students into the locker rooms and restroom facilities of students of the opposite anatomical gender.

The Dallas School District (DSD) has sent a letter to Governor Kate Brown seeking clarification on SB2 after offering a transgender student full inclusion into the locker rooms and restrooms of the opposite anatomical gender at Dallas High School (DHS) last semester. The student, who had not undergone gender identity counseling nor biological and surgical changes, had been given reasonable accommodations, and then asked for full inclusion. DSD granted the request.

How Governor Kate Brown and our legislators interpret The Oregon Equality Act will effect all Oregon’s school children.

Decisions locally, were made through the guidance of OSBA Director of Policy Services, Peggy Holstedt, and DSD legal counsel Kelly Noor and Paul Dakopolos – who represent a variety of Oregon school districts.

Furthermore, Dallas parents have been told by Noor and Dakopolos that every school restroom within the district is open to anyone of any age based on the gender they identify with.

This call for full inclusion for transgenders into locker rooms and restrooms has no basis through either state or federal law. Yet Noor and Dakopolos have given DSD the option of litigation, federal investigation, or both, unless they comply with full inclusion. Their pressure will extend to many Oregon school districts.

However, the Oregon Equality Act, Section 29, ORS 659.850, states:

Discrimination” does not include enforcement of an otherwise valid dress code or policy, as long as the code or policy provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.”

The Oregon Equality Act senate floor tapes from April 17th, 2007 speaks to full inclusion only for those who have undergone gender reassignment surgery with major biological changes required. Yet, OSBA, Noor, and Dakopolos are misapplying SB2 with their call for full inclusion even without gender reassignment surgery.

Further, Noor and Dakopolos argue Title lX requires full inclusion, but the Ninth Circuit Court ruled against Title lX requiring inclusion in 2009 in Tempe, AZ on the basis of safety, as did the Eastern Federal District Court in Virginia in 2015.

Misapplying US Department of Education, Office of Civil Rights (OCR) regulations, which are meant to keep transgenders safe from physical and sexual violence, creates further civil rights violations, and an unsafe environment for all.

The Eastern Federal District Court stated:

Department of Education regulations stipulate: A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex. 34 C.F.R. § 106.33.

This regulation (hereinafter, “Section 106.33”) expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable…. Rather, Section 106.33 seems to effectuate Title lX’s provision allowing separate living facilities based on sex.”

Further, the court states regarding the US Department of Education’s/Government’s Title lX interpretation which calls for full inclusion:

            The Department of Education’s interpretation does not stand up to scrutiny.

And:

Furthermore, the Department of Education’s interpretation of Section 106.33 is plainly erroneous and inconsistent with the regulation. Even under the most liberal reading, “on the basis of sex” in Section 106.33 means both “on the basis of gender” and “on the basis of biological sex.” It does not mean “only on the basis of gender.”

 To defer to the Department of Education’s newfound interpretation would be nothing less than to allow the Department of Education to “create defacto a new regulation” through the use of a mere letter and guidance document. See Christensen, 529 U.S. at 588. If the Department of Education wishes to amend its regulations, it is of course entitled to do so. However, it must go through notice and comment rulemaking, as required by the Administrative Procedure Act. See 5 U.S.C. § 553. It will not be permitted to disinterpret its own regulations for the purposes of litigation.

Oregon’s parents, education administrators, law makers, and the Oregon Department of Education, as well as the ACLU need to understand there is no basis for full inclusion for transgenders (who have not undergone gender reassignment surgery) under Title lX without misapplying the law.

Many school districts, such as Portland, have implemented transgender policies on a case by case basis with reasonable accommodation. Eugene solutions include, gender neutral single-stall bathrooms which protect privacy, safety, and respect, yet OSBA, OCR, DSD legal counsel, nor the ACLU has advised Dallas to seek these solutions. When will these organizations be part of the solution vs. encouraging an end which leads to litigation at potentially tax payer expense?

New Oregon Department of Education school guidelines are to release in March. Reasonable accommodation is needed for transgender students, and policies which follow the law and do not violate anyone’s civil rights. We can and must find loving solutions which do not violate civil rights.

Let’s find loving solutions for all students which afford privacy, safety, and respect. These are the same rights Lambda Legal seeks for LGBT persons. The United Nations Convention of the Rights of the Child mandates privacy for children in article 16. Will we not also in Oregon mandate and protect privacy, safety, and respect for all? There is no room in Oregon for discrimination of any citizen regardless of sexual orientation.

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About the Author:  Kim Conolly is a parent in Dallas, Oregon who desires and values loving solutions for all persons, which violate the civil rights of none. She volunteers with First Lego League Robotics, Parent Teacher Committee, Dallas United Soccer, and along with her family, is part of the national program Safe Families for Children.

* Copyright February 2016 by Kim Conolly

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