The Durham school board plans to vote later this month on an expanded nondiscrimination policy that includes gender identity.
Board Chair Heidi Carter said Tuesday the school board had already begun revising the policy, called “Equal Educational Opportunity for All Students,” when House Bill 2 was passed, a “very negative irony.”
“Our main reason for introducing ‘Equal Opportunity for All Students’ was to be sure we very plainly said that gender identity is included in our list of categories that we will not discriminate against,” she said.
The new version also adds protected classifications such as ancestry, color, socioeconomic status, and immigration status.
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The board passed a resolution Monday night calling for state lawmakers to repeal House Bill 2.
Both the resolution and the expanded nondiscrimination policy represent efforts to affirm the board’s support for all students, Carter said..
“We wanted to make a strong statement saying that we value inclusiveness and nondiscrimination, and we’re opposed to homophobia and transphobia,” she said. “We wanted to take a stand for dignity and the equality of our students.”
“It’s our duty to keep all our our students safe,” said board member Natalie Beyer. According to a national survey cited in the board’s resolution, 75 percent of transgender students feel unsafe at school.
Beyer also referenced the high rate of depression and suicide among transgender teenagers. A study by the American Foundation for Suicide Prevention, also included in the resolution, found 41 percent of transgender people have attempted suicide compared to 4.6 percent of the rest of the population.
“It also is deleterious to the culture of a school to have it made clear that our General Assembly does not respect all of our children and all of our citizens,” board member Leigh Bordley said.
Title IX funding
Durham county commissioners also discussed a resolution opposing House Bill 2 on Monday, although the board deferred a vote until its next meeting in order to fine tune the language.
Both boards are working to understand the law’s impacts on local policies, especially those informed by federal laws like Title IX of the Education Amendments of 1972.
House Bill 2 requires that transgender students use the bathroom corresponding to the gender on their birth certificates, but the school board is concerned this contradicts Title IX protections, which prohibit sex-based discrimination.
According to a 2014 U.S. Department of Education memo, the protections apply to “straight, gay, lesbian, bisexual and transgender students.”
“We’ll continue to push back against (the bathroom restrictions) because Title IX requires us not to discriminate based on gender identity in anything related to educational opportunities, and that includes accommodations in our schools,” Carter said.
House Bill 2 opponents like the ACLU say violating Title IX could jeopardize the $4.58 billion in federal funding North Carolina is expected to receive this year.
Gov. Pat McCrory has said the law does not threaten Title IX funding, citing a case in Virginia where a judge ruled that requiring students to use bathrooms according to the sex assigned at birth did not violate Title IX.
But Politifact, a media fact-checking project, declared his statement false. (The News & Observer is a Politifact partner in North Carolina.) The case is still awaiting a decision from the 4th Circuit Court of Appeals, which also has jurisdiction over North Carolina. The article also noted that Illinois and California schools have allowed transgender students to use bathrooms corresponding to their gender identities in order to avoid losing Title IX funding.
For now, Carter said, schools will continue to let transgender students use single-occupancy bathrooms.
But school and county officials are concerned with more than the law’s bathroom regulations.
The legislation also restricts local municipalities’ authority to pass nondiscrimination ordinances, overriding existing protections, and prevents them from raising the minimum wage above the state standard. It also keeps workers from making discrimination claims in state courts.
In other words, while local governments can still have internal nondiscrimination policies and a minimum wage, they can no longer hold contractors and subcontractors to the same standards.
Board member Minnie Forte-Brown was especially concerned about the law’s impact on equity and minority involvement when awarding contracts.
“I don’t want us to just get caught up in this,” she said, referencing the discussion of bathroom facilities. “This is good, but I want to get to the part that deals with the money, what they’re really after.”
“They don’t care who goes to the bathroom,” she said. “They really are caring about those contracts.”
Beyer agreed, calling the law “a smokescreen for stirring up a political base.”
The board considered delaying action on the resolution to address all the law’s impacts but ultimately chose to vote on the version that condemned discrimination and called for its repeal.
What the new law does
The “Public Facilities Privacy & Security Act,” was signed into law by Gov. Pat McCrory on March 23 after a special legislative session.
It prohibits local governments from enacting their own regulations that ban discrimination. Instead, the bill would create a statewide law that would ban discrimination on the basis of “race, religion, color, national origin or biological sex” at businesses and other “places of public accommodation.” But the law wouldn’t include sexual orientation and gender identity as categories protected from discrimination.
Local school districts would be banned from allowing students to use communal bathrooms and locker rooms that don’t match the gender on their birth certificates. Schools still could allow transgender students to use single-occupancy facilities.
The legislation also restricts local governments from regulating employment practices. Cities and counties could not require contractors to abide by regulations or controls on employment contracts as a condition of bidding for work. So, for example, localities cannot require contractors to pay a higher minimum wage.