EducationStatewide NewsTexas Freedom Caucus Says School Board Group’s Guidance on Transgender Students Subverts Law, Parental Rights

The conservative group has requested that Attorney General Ken Paxton review the Texas Association of School Board’s guidelines on transgender students.
January 19, 2023
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The Texas Association of School Boards (TASB) recently released updated legal guidance for public school districts on transgender students, but a group of conservative lawmakers have condemned the organization’s advice and requested a review from Attorney General Ken Paxton.

In the 13-page document, TASB — long a mover and shaker in K-12 education — cites Title IX of the U.S. Civil Rights Code prohibiting discrimination on the basis of sex in federally funded education, noting that some federal agencies have interpreted the law as covering gender identity.

The organization then offered legal analysis and guidance on a range of issues: transgender students’ requests to use facilities designated for the opposite of their biological sex, use of a student’s preferred names, transgender participation in gendered sports, and the reporting of medical sex change procedures as child abuse to state authorities.

In response, lawmakers in the conservative Texas Freedom Caucus (TFC) sent a letter to Paxton this week requesting a review of TASB’s guidance over concerns that it “will endanger children and encourage school districts to keep parents in the dark.”

Among concerns listed, the caucus accused TASB of advising school districts to allow males to enter female restrooms or locker rooms, which TFC says is “dangerous for girls” and counter to sound legal principles. The group also noted that last month the U.S. 11th Circuit Court of Appeals upheld a Florida school district’s policy separating school bathrooms based on biological sex.

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TFC also takes issue with TASB for suggesting school districts may violate state law on males participating in female sports. TASB’s guidelines offer that federal courts and agencies are likely to side with transgender students and that “President Biden is urging Congress to pass a statute that would supersede state laws denying rights to transgender individuals.”

The TFC letter further argues that TASB’s guidance would have school districts subvert parental rights by “granting discretion to educators on whether to report a child’s gender dysphoria,” and that instructions to use a child’s preferred pronouns at school while referring to the child’s legal name in correspondence with parents would violate the state Education Code.

Signed by the TFC chairman, Rep. Matt Schaefer (R-Tyler), the caucus letter also refers to a Loudoun County, Virginia case in which a male student wearing a skirt sexually assaulted a female student in a bathroom, and requests that Paxton offer alternative legal guidance to school boards “to ensure our schools remain safe and healthy environments.”

TASB Deputy Executive Director Tiffany Dunne-Oldfield told The Texan in an emailed statement that the organization develops such legal guidance in response to questions received from school district officials to help them avoid lawsuits and discrimination claims, and that the document in question “conveys that this is a complex and emerging area of law involving sensitive decisions.”

“To set the record straight, TASB Legal Services does not tell districts to allow males to enter female restrooms or locker rooms,” Dunne-Oldfield wrote. “We also don’t direct or advise districts to subvert parental rights on preferred pronouns and gender identity. In fact, we assert that school districts should work with students and parents in navigating these situations and that parents have the right to direct the upbringing of their children and make medical decisions for them.”

In an interview with The Texan, Schaefer said TASB’s legal guidance was “dangerous” for school districts because they were adopting a new definition of “sex” that had not been approved by Congress in federal law.

“TASB is recommending to school boards all over the state that they establish legal protections for the transgender philosophy that runs counter to common sense and sound legal reasoning,” said Schaeffer. “The 11th Circuit holding gives us a very definitive ruling of the plain meaning of the word sex, and if school districts violate Title IX civil rights there will be severe consequences.”

Prior to the TFC letter, some school board members also criticized the TASB guidance.

Lamar Consolidated Independent School District (LCISD) Trustee Jon Welch — who emphasized that he spoke for himself, not his district — told The Texan he had grave concerns over the trajectory of the organization, which he said had become “less objective in their policies and more progressive.”

“Regarding the legal guidance that TASB recently gave for public schools in Texas on transgender students, their stance accepts the premise that gender is actually fluid. Science tells us that gender is fixed,” said Welch, who noted that LCISD pays $11,000 annually for the board of trustees to be members of TASB.

“Our district permits troubled students struggling with their identity to use a staff or unisex restroom, but we do not allow a male student who ‘identifies’ as female to use the women’s restroom.”

As a nonprofit private organization, TASB is not subject to Texas Public Information Act Requests, but a spokesperson explained to The Texan that annual dues range from $800 to $11,000 with the median fee being $2,500.

According to Welch, every public school district in the state pays for its board of trustees to be members of TASB.

In addition to providing training to school board members, TASB provides legal representation to board members and lobbies the state Legislature on education policy.

In 2021, TASB drew scrutiny after former president Viola Garcia, while leading the National School Board Association (NSBA), authored a controversial letter asking the U.S. Department of Justice and other federal law enforcement agencies to investigate parents disrupting school board meetings. Last year, TASB announced they would leave the NSBA over the matter.

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Holly Hansen

Holly Hansen is a regional reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.