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NSAA discussion on transgender students continues

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The Nebraska School Activities Association board of directors continued talking in closed session Thursday about how to handle transgender students’ participation in sports but has yet to make a draft policy public.

Three organizations that have been following the process closely weighed in again Thursday, following NSAA district meetings earlier this week at which parochial schools proposed a policy that says students would participate in sports according to the gender on their birth certificates.

That proposal will continue through the NSAA process, independent of work being done by the board of directors.

If the association’s representative assembly ultimately passes such a policy, it would override any policy created by the board. The assembly represents the membership and could also amend the policy or disregard it in favor of a policy passed by the board of directors.

Although it affects a small number of students, the transgender issue has created complicated situations for schools across the country.

The federal government has interpreted Title IX to include protection of transgender students, although a U.S. district judge in Virginia recently rejected the Title IX argument in a case in which a student born female is suing to use male restrooms at the high school.

On Thursday, Sheri Rickert, Nebraska Catholic Conference policy director and general counsel, told the board her organization is concerned that too much attention is focused on potential litigation and not on what is best for students.

Both Rickert and Karen Bowling, outreach and operations director of the Nebraska Family Alliance, say the birth certificate proposal is best for all students.

NSAA board members have said their legal counsel does not think a policy relying on birth certificates would hold up in court. At a district meeting Wednesday, local board members pointed to a dispute between a suburban Chicago school district and the federal Office of Civil Rights over the use of locker rooms where the school district stands to lose $6 million in federal money.

More than 30 state associations now have policies, and ACLU of Nebraska legal director Amy Miller told the board on Thursday that Nebraska needs one as well.

Her organization has encouraged the NSAA to adopt a policy that mirrors that in Wyoming, Minnesota or South Dakota -- and Bellevue Public Schools. These policies allow students to participate in sports based solely on their gender identity, or on that plus confirmation by parents and guardians.

Miller said she thinks the NSAA should craft an overarching policy that allows students to participate in sports based on their gender expression, then leave it to schools to determine a given student's gender based on discussions with the student and parents.

Rickert and Knowles argue any policy -- including those that allow students to participate according to their expressed gender or according to a gender affirmed by a parent or doctor – leaves the state open to litigation.

Rickert and Knowles also worry that policies acknowledging a student's gender expression could put schools in the untenable position of encouraging medical treatment, raise privacy concerns in locker rooms and bathrooms and create unfair competitive advantage.

Such policies appear to subjugate the rights of the majority to the rights of the minority, Rickert said in comments outside the NSAA meeting.

But Miller said those are the same arguments were made when Title IX was passed allowing girls to participate in sports, or about allowing disabled students to play.

The burden should not be on a transgender student to use a different facility if someone else feels uncomfortable, she said, and public policy shouldn’t be based on individual biases.

“The fact that some people have discomfort, I hope they can work through that,” she said. “But that’s not anything we use to create policies for justice for all.”

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Local government reporter

Margaret Reist is a recovering education reporter now writing about local and county government and the people who live in the city where she was born and raised.

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