Windham School Board Approves Unconstitutional “BATHROOM BILL” Policy - Granite Grok

Windham School Board Approves Unconstitutional “BATHROOM BILL” Policy

Transgender bathroom
By Tom Murray – Windham School Board Member

On Tuesday, January 30th the Windham School Members (WSB) Rob Breton, Keleigh McAllister, Dennis Senibaldi, and Daniel Popovici-Muller all voted to impose Obama’s radical Transgender “Bathroom and Locker Room” policies on our students and district employees in Windham.

Now mandated by Policy JBAB, boys who “identify as girls” must be treated as girls, and girls who “identify as boys” must be treated as boys – or else there will be consequences!

There are multiple reasons for my concern with this unconstitutional overreach by the WSB. I’ll cover just a few.

Primarily, Policy JBAB was approved despite legal advice the Board received last year from the New Hampshire School Boards Association’s attorney, Barrett Christina. He informed all Windham School Board Members that there is no reason to approve a transgender policy – and went even further to say that if one were accepted, it would open the district to lawsuits.

The District is already required by NH RSA 193-F to protect all students from bullying based on gender identity. Board Policies already bar discrimination based on sex (Policy AC) and prevent the harassment of students based on their sex, or sexual orientation (Policy ACAA). These policies comply with the New Hampshire anti-discrimination law (RSA 354-A), and the District is already in compliance with all applicable laws.

All Students have Rights, but as we have seen in recent times, only the rights of the few are considered when crafting radical ideological policies. In crafting policies that determine the governance of our schools, the Board needs to recognize that all students have a Constitutional Right to bodily privacy. As the Ninth Circuit has recognized, “[s]hielding one’s unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988).

And there are privacy issues. JBAB mandates access to bathrooms and locker rooms:

“Students shall have access to the restroom that corresponds to their gender identity consistently asserted at school.”

“In most cases, transgender students should have access to the locker room that corresponds to their gender identity consistently asserted at school.”

It is unconstitutional for school officials to compel students to share intimate spaces with members of the opposite biological sex. We need to be mindful of the Inalienable Rights of all students.

Policy JBAB gets crazier. It violates constitutional protections of freedom of speech and freedom of beliefs, by compelling students and employees to express and support ideas and beliefs with which they disagree. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

As a result, our policies should respect the law and protect the notion that no student can be compelled to engage in expression with which they (or their parents) disagree.

The radical ideological efforts to indoctrinate our children and employees with gender identity and sexual orientation ideologies in public schools often conflict with these free speech principles.

This is especially true when schools compel students to “celebrate” a transgender student coming out or to require them to use certain words or pronouns – as is codified in policy JBAB.

“A student has the right to be addressed by a name or pronoun that corresponds to the student’s gender identity. A court-ordered name or gender change is not required, and the student need not change his or her official records. The intentional or persistent refusal to respect a student’s gender identity (for example, intentionally referring to the student by a name or pronoun that does not correspond to the student’s gender identity) is a violation of this policy.”

This puts ALL STUDENTS AND ALL EMPLOYEES at risk of illegal disciplinary actions if they do not submit to this unconstitutional policy.

Policy JBAB tramples students’ rights under the guise of attempting to prevent controversy and avoid offending other students. But as defined by the courts, this is not a permissible basis for compelling speech. A school “must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Tinker, 393 U.S. at 509. Students “may not be confined to the expression of those sentiments that are officially approved.” Id. at 511.

Likewise, school officials cannot command their students to accept or celebrate ideas, values, and beliefs regarding sexual orientation and gender identity. Parents and students alone have the right to determine what values are central to their lives and family. In the same manner, schools cannot command students to use words, pronouns, or engage in other forms of expression that conflict with their values and beliefs. To do so tramples students’ well-established Constitutional Rights and opens schools to liability for infringing those rights – as we were appropriately cautioned by Attorney Christina.

Similarly, the U.S. Supreme Court warned against a school that attempted to compel students to recite the Pledge of Allegiance:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

The U.S. Supreme Court recognizes that parents possess a fundamental right to direct the upbringing and education of their children. See Troxel v. Granville, 530 U.S. 57, 65 (2000). Because discussions of gender identity and sexual orientation are issues that many parents desire to introduce to their children in their own time and in a manner consistent with their family values and beliefs, schools should respect the authority of parents.

If parents are unaware about their child’s transgender behaviors at school, Policy JBAB prohibits school personnel from discussing those behaviors with parents if the student does not provide permission to do so.

“When contacting the parent or guardian of a transgender or gender nonconforming student, school personnel should use the student’s legal name and the pronoun corresponding to the student’s gender assigned at birth unless the student, parent, or guardian has specified otherwise.

Transgender and gender nonconforming students have the right to discuss and express their gender identity and expression openly and to decide when, with whom, and how much to share private information themselves.”

This illegal policy was brought to the policy committee three years in a row – and rejected. It is only with the election of Keleigh McAllister to the School Board last year that has caused it to now be imposed on our students, teachers and all district employees.

Elections have consequences. When Windham voters elected Keleigh McAllister to the School Board last year, it provided an opportunity for her to inject her radical liberal ideologies onto our children and district employees.

Respectfully submitted,
Tom Murray, Windham School Board Member