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Four parochial schools in the Nebraska School Activities Association have introduced a proposal on how schools should handle transgender students’ participation in sports, a move that could trump efforts by the association’s board of directors to create such a policy.

The proposals, introduced in four of the association’s six districts, would change bylaws to require that students participate according to the gender on their birth certificates and are likely more conservative than one drafted by the board.

Two of the four districts passed the proposal, which means it will move forward through a legislative process that includes several other steps. Bylaw changes can happen through a legislative process driven by the members, or by board action. But changes passed by members trump those enacted by the board, according to NSAA Associate Director Deb Velder.

JD Flynn, a spokesman for the Catholic Diocese in Lincoln, said the proposal put forth by representatives of one Lutheran and three Catholic schools isn’t an attempt to circumvent a policy the NSAA board might draft but rather an attempt to introduce a proposal fair to all students.

“Schools like Pius (which introduced the proposal in District 1) wanted to represent in a proactive way the concerns their parents and students raised,” he said. “There is no board proposal, so we don’t know what that will look like. This policy is fair for all students.”

Requiring students to participate in sports based on the gender on their birth certificates allows transgender students to participate while also addressing concerns about fairness and safety based on physical differences between males and females, he said.

“We really do think this is most principally a matter of fairness,” Flynn said.

An explanation of the proposal on the NSAA district agenda also notes that such a policy would avoid “supporting or encouraging psychological or medical interventions” and respects the First Amendment rights of religiously affiliated schools.

The NSAA board of directors has been working in executive session for several months to come up with a draft policy that would address the issue and prevent litigation. NSAA Executive Director Jim Tenopir has said he knows of at least two Nebraska schools that have transgender students interested in participating in sports.

Although there’s been no indication about what a draft policy from the board would look like, other states have created policies that allow students to participate in sports according to their expressed gender identity or according to a gender affirmed by parents and guardians.

ACLU of Nebraska has weighed in on the debate, encouraging the NSAA to follow those examples. 

On Wednesday, ACLU of Nebraska Legal Director Amy Miller said policies based on birth-certificate gender might interfere with a student’s privacy and are inconsistent with guidance provided by the U.S. Department of Justice.

Both the Nebraska Catholic Conference and Nebraska Family Alliance have encouraged the NSAA board to adopt a policy like that introduced by the parochial schools.

At district meetings this week, two of the four districts passed the proposal, or an amended version of it. That's enough to move it to the next step. No such proposals were introduced in districts 5 and 6 in western and southern central Nebraska, neither of which has a parochial school.

NSAA District 4 in central Nebraska met in Kearney Monday and approved the proposed change.

The same proposal failed when introduced by the Pius X High School representative in southeast Nebraska’s District 1. District 2, which includes schools in and around Omaha, tabled the issue. Northeast Nebraska members in District 3, which met in Norfolk, passed an amended proposal. All three districts met Wednesday.

The original proposal would require students to participate according to the gender indicated on the birth certificate at birth. The proposal passed by District 3 removed the words “at birth.’’ State law allows people who have had sex reassignment surgery to change the gender on their birth certificates.

Both proposals will be voted on by all six districts at meetings in January. If at least three districts pass one or both proposals, they will move on to the association's representative assembly. That body, which includes delegates from each district and the board of directors, meets in April.

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If the measure passes by a two-thirds majority, it would take effect the next school year.

Now, more than 30 state associations have policies addressing transgender students’ participation in sports, including those in Georgia and North Carolina that are similar to the parochial school proposals.

At Wednesday’s district meeting in Lincoln, a representative from Lincoln Public Schools said its district representatives would vote against the proposal because they want to allow the process to play out at the board level.

NSAA legal counsel is advising the board, and some states with policies like the one proposed by the parochial schools are facing legal challenges, said Mark Norvell, superintendent at Fillmore Central Schools and an NSAA board member representing District 1.

“The issue is probably larger than most of us want to take on,” he said. “(The board) is waiting for our legal counsel to guide us down the path.”

Pius athletic director Tim Aylward said any policy adopted by the NSAA is likely to face a legal challenge by some group. The proposal he introduced is "black and white" and a starting point, he said.

Lincoln Christian’s Activities Director Matt Farup said the birth certificate policy follows current practice.

Two years ago, then-NSAA Executive Director Rhonda Blanford-Green introduced a transgender policy, but it was never enacted and left to the membership to advance. That didn't happen until now.

The NSAA board of directors meets Thursday.

Reach the writer at 402-473-7226 or mreist@journalstar.com.

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Education reporter

Margaret Reist is a Lincoln native, the mom of three high school graduates now navigating college and an education junkie who covers students, teachers and policymakers inside and outside the K-12 classroom.

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