Do Rochester Public Schools’ Transgender Policies Comply with Federal Title IX Regulations? – Post Bulletin

ROCHESTER — Despite the threat of legal action, Rochester Public Schools remains confident in the legal foundation on which they have built procedures to support transgender students.

It just so happens that those who threaten legal action are equally confident.

With both sides circling each other, it’s unclear how the situation will actually play out. But if it does, it’s likely to involve a dispute over the interpretation of the U.S. Department of Education’s Title IX, which district officials cited heavily in crafting the document.

“We have received unconditional confirmation that we are in full compliance with federal Title IX law… and Minnesota human rights law,” said RPS Director Kent Pekel.

Rochester Public Schools first developed a set of guidelines for transgender and gender-flexible students in September 2023. The district’s school board then solidified those guidelines into policies on July 17.

While the situation had been building for months, it came to a head last week when the school district received a joint letter from the Wisconsin Institute For Law and Liberty and the Upper Midwest Law Center.

Many aspects of the district document were controversial, but the letter focused on issues of parental notification and approval. The letter threatened the district with lawsuits if it “applies this policy to the transition of a minor child without parental notification or approval.”

District procedures require schools to share any information they have with parents if they ask. However, the district does not require schools to proactively notify parents if their children ask to use alternate names or pronouns.

The regulations also do not oblige schools to obtain parental consent if a child wishes to use a different name or pronouns.

“Parents should not be required to repeatedly and periodically contact school personnel to ensure that the District has not secretly transitioned their child’s gender at school.”

The district did not respond to the letter from both organizations.

But throughout the months-long process of developing the procedures, district leadership repeatedly said it was in compliance with federal Title IX regulations. When board chair Cathy Nathan announced in May that the district would begin turning the guidelines into actual procedures, she said they waited until the new Title IX updates for 2024 were released on April 19.

On June 11, the school board held a study session on the proposed procedures, at which the district’s attorney, Mick Waldspurger, reiterated his position that the district’s plans comply with federal and state regulations.

“I think they are certainly in compliance with all aspects of the law,” Waldspurger said of the procedures at the time.

The 2024 Title IX final regulation is a more than 1,500-page U.S. Department of Education document that details “nondiscrimination on the basis of sex” in federally funded programs and activities.

But those opposed to Rochester Public Schools’ procedures are not convinced by the district’s argument that they fully comply with federal law.

“I’ve heard a lot of bad justifications for this policy from a lot of lawyers,” said Luke Berg, deputy general counsel of the Wisconsin Institute for Law and Liberty, who was one of the lawyers who wrote the letter to Rochester Public Schools. “You hear a lot of different legal arguments for it that often get thrown out in lawsuits because they don’t really make sense and they’re not correct — one of them is Title IX, in fact.”

He went on to say that the Title IX 2024 document “does not directly answer the question” raised in Rochester. Instead, he said the most relevant passage that would apply is in a section of the document under the heading “parental rights.” It reads as follows:

“If a parent and a minor student cannot agree on the decision to file a complaint of sex discrimination, the decision of the parent, guardian or other authorized representative who has the right to act on the student’s behalf in such matters should be respected.”

However, the school district’s procedures do not explicitly contradict this passage. While the district document makes clear that parental consent is not required for a student to use an alternate name or pronouns, it does not explain what schools should do if a parent or guardian has specifically requested one thing and their student has requested the opposite.

Will the tension ever escalate into actual litigation? With a student population of more than 17,000 students, it’s not unthinkable that a situation could arise that would lead to a lawsuit. According to the 2022 Minnesota Student Survey, 1.4% of Rochester’s 11th-grade respondents identified as a transgender man, 0.9% as a transgender woman, 3.8% as nonbinary, 1.7% as agender, and 1.9% as “genderfluid, gender nonconforming, or genderqueer.”