Calallen ISD policy restricts restroom use by biological sex. What are the legal concerns?

Last month, the Calallen Independent School District board of trustees approved two new policies that restrict the restrooms individuals can use, and the names or pronouns others refer to them as at school, based on biological sex.

The new Calallen rules resemble policies that have sparked legal challenges in other school districts across Texas and the country, in which civil rights activists have argued that policies that restrict students’ gender identity infringe on their rights. At the same time, the Calallen decision has been celebrated by a conservative advocacy organization.

A new clause of the school district’s facility “safety and security” policy restricts bathroom and changing facility use by biological sex.

According to the policy, Calallen schools will maintain separate restrooms and locker rooms, with individuals required to use the facility that corresponds with their gender assigned at birth as determined by the biological sex listed on the individual’s original birth certificate.

The policy also includes the caveat that the district can provide “reasonable accommodations” upon request, such as allowing a person seeking privacy to use a single-user restroom.

A new “identification of students” policy states that district staff shall not be required to use pronouns that are inconsistent with a student’s biological sex as it appears on their original birth certificate. District staff will not ask about students’ preferred pronouns.

When it comes to name changes, the district will consult and ask permission from parents before using a name to refer to a student other than the name listed on their birth certificate or any nicknames listed on enrollment paperwork.

Though staff members are not required to use a preferred pronoun or name, parents can request that they do so in writing.

How are the policies being implemented now?

Superintendent Emily Lorenz said that for staff to consider a preferred name or pronoun, or potential accommodations regarding the restroom policy, a student’s parent or guardian would need to be involved.

For parents concerned about how the new policy will impact the use of nicknames at school, Lorenz said that parents can list nicknames in their student’s online registration paperwork. Any changes later in the year can be submitted in writing, such as in an email or letter to the school.

Lorenz said that historically, teachers have respected the requests of parents with regards to nicknames. But according to the policy, staff have a choice whether or not to comply.

With regards to restrooms, the policy states that individuals must only use the restroom that corresponds with their biological sex as identified on their birth certificate, unless in the case of accommodations for a single-use restroom.

This means that if an individual’s sex or gender appears differently on other government documents, such as their driver’s license or in a modified birth certificate, the district would only consider a birth certificate that was issued at or near the time of the person’s birth.

This is based on the way biological sex is determined for interscholastic athletic competitions in Texas.

But not all people can be clearly identified as male or female. This is called being “intersex,” when an individual is born with anatomy or chromosomes that don’t fit the typical definitions of male or female.

Calallen ISD’s policy applies regardless of whether an individual is intersex or if their gender identity differs from the sex they were assigned at birth.

Lorenz said that at Calallen High School, several private restroom options exist on campus. The policy does allow students to use these facilities if they prefer. Lorenz said that options are available in the nurse’s office and in the counseling office, which is near athletic facilities.

Lorenz said there are also staff restrooms that could be converted to a single-use restroom if needed to accommodate a student. There are reasons beyond gender identity that a student might feel more comfortable using a single restroom, and many already use the nurse’s restroom, Lorenz said.

Lorenz said that staff would sit down to discuss options with a student if they are interested in accommodations.

She said that the district has had transgender students before and has made accommodations for those students, including related to restroom use and pronouns.

How did the policies come about?

When it comes to issues of gender identity and biological sex, Calallen ISD previously operated on a case-by-case basis with no formal policy on the books.

“These were (introduced) by request of the school board,” Lorenz said. “They had seen similar policies in other districts and felt that Calallen ISD needed to establish a policy so that we were clear on our procedures moving forward.”

Though other school districts have introduced policies related to gender, pronouns and restroom use, the trend is not widespread locally.

The Caller-Times searched through board policies of all other Corpus Christi school districts. None had a formal policy restricting restroom use or relating to preferred names or pronouns.

In Calallen, both policies were approved during a school board meeting in October, during which multiple members of the public, including the family of a student in the district, spoke, sharing concerns.

These speakers, among them a teacher, spoke in support of a Calallen student, expressing concern that this student was being targeted, and that the policies expose this student to bullying and rumors.

The family of the student did not respond to the Caller-Times’ requests for an interview.

One community member also expressed support for the new policies.

The board had previously met in closed session to consult with the district’s attorneys, with the policies drafted based on the requests of a board member.

Ahead of the votes, trustee Lori Jo Walker shared that she had carefully considered the issue, referring to the Christian biblical commandment to “love thy neighbor as thyself.”

“As a former teacher, I understand that effective teachers build relationships with their students,” Walker said during the October meeting. “I think we can all remember those teachers that supported us, believed in us and helped us find success. I want to make sure that we create a policy that still allows for these important relationships.”

The initial draft of the identification policy said that staff “shall” refer to a student by their preferred name or pronouns upon request, but trustee Edward Wells suggested a change in wording to “may,” leaving it up to staff to decide whether or not to comply with a request from a parent.

For the restroom policy, board members voted to approve the policy, with then-President Lana Carr, whose term has since expired, abstaining because she did not attend the meeting with legal counsel.

The identification policy was also approved, though Walker opposed the motion and Carr again abstained.

During the discussion, audience members at the meeting audibly expressed discontent with the policies.

After the meeting, Wells, who has spoken vocally during other board meetings about believing the district needs a “new direction,” referred to the new bathroom policy as a “huge victory” in a Facebook post.

“We must also demand that staff not promote or encourage gender fluidity & remove sexually explicit materials from our libraries,” Wells wrote from an account associated with his school board campaign.

From a public Facebook account tagging the campaign account and two other board members, Wells also shared a link from Citizens Defending Freedom, a conservative group, celebrating the restroom policy.

The Citizens Defending Freedom post claims that a “concerned school board member” alerted the organization to “issues regarding biological males using female facilities” and that Citizens Defending Freedom provided the board with information on the subject.

Above the link to the post, Wells wrote that the school board must “follow the law” and “protect our children while defending freedom.”

In an interview with the Caller-Times, Wells declined to comment further on the policy.

What are the legal or civil rights concerns?

In Virginia, a transgender student successfully sued the Gloucester County School Board after the board directed him to use a private alternative restroom. The American Civil Liberties Union argued that the student was discriminated against in violation of the Equal Protection clause and Title IX of the U.S. Education Amendments of 1972.

In Grimm v. Gloucester County School Board, a Virginia district court and a federal appeals court ruled in favor of the student. In 2021, the U.S. Supreme Court allowed the lower court decision to stand. According to the ACLU, the school board was ordered to pay more than $1.3 million in attorney fees and costs related to the case.

This year, the Biden administration revised the rules for the civil rights law that prohibits sex-based discrimination in federally funded colleges and schools, expanding protection against misconduct based on sex stereotypes, pregnancy, gender identity and sexual orientation. But in Texas, Gov. Greg Abbott ordered the Texas Education Agency to ignore the revision.

The Katy Independent School District adopted a policy to notify parents if their child requests to use a different name or pronouns at school, sparking an investigation from the U.S. Department of Education’s Office for Civil Rights on the basis of gender harassment under Title IX, the federal law that prohibits sex-based discrimination in schools.

Lorenz said the district was aware of challenges, but that there are other places where policies haven’t been challenged.

“We definitely included our attorney to make sure that they felt that we were secure in passing these policies based on the courts’ decisions as they stand,” Lorenz said.

Chloe Kempf, a staff attorney at the ACLU of Texas, said that the ACLU was aware of the Calallen policy. She said her impression of the policy is that it is harmful and violates the U.S. Constitution and Title IX.

“We’ve seen students across the country file successful lawsuits against policies like these,” Kempf said. “The harm that this discrimination causes can be very severe. We know that when, for example, transgender students are called by the incorrect names and pronouns or are forced to use restrooms that don’t align with their gender identity, that they feel ostracized.”

This can impact their mental health and performance at school and put a target on their back for bullying and harassment, Kempf said.

“All students, no matter their gender, deserve to feel respected and included at school,” Kempf said. “It’s essential for their mental, physical and academic health that they be treated as the person, as the gender that they are.”

A 2018 University of Texas study found that for transgender youth, use of their chosen name at school, home, work and with their friends is associated with lower depression, suicidal ideation and suicidal behaviors.

Kempf said that policies like this also raise concerns for intersex students.

“It really opens up all students — transgender, nonbinary and intersex and even cisgender — to invasions of privacy,” Kempf said, adding that in some cases school officials might demand to compare a student’s birth certificate to medical records or other legal documentation.

Kempf said that for Texas students concerned about these types of policies, it’s important to keep an eye on the local school board, which is required to publicly post agendas before meetings.

“If you see a policy like this come up for debate, it might be an opportunity to organize the community to come speak out,” Kempf said.

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This article originally appeared on Corpus Christi Caller Times: Calallen ISD policies restrict restrooms, pronouns by biological sex

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