Schools wait to learn how to police their bathrooms
The fallout from a state law created to police bathroom use is still unclear in the eyes of students, teachers, administrators and mental health experts weeks before school starts, leaving them with little time to prepare.
One transgender high school senior said when he was a freshman, he was followed into the bathroom and harassed by a classmate. He hopes a recently passed law won’t create a hostile school environment for students like him.
A superintendent said she’s worked hard to create an inclusive environment for students in her school district, and she hopes the law won’t compromise that.
A high school teacher who’s established himself as an ally for LGBTQ+ students said he’ll refuse to comply with the law if he’s required to monitor bathroom use by his administrators.
Administrators and teachers are still waiting for guidance on how best to comply with a new state law requiring trans students to use bathrooms that align with their sex assigned at birth, which relates to their reproductive organs and chromosomes at birth.
While the process for ensuring students obey the law remains in flux, the penalties for failing to comply are clear.
Schools found to be noncompliant by the Oklahoma State Department of Education risk losing 5% of school funding for the next fiscal year. Parents also have a cause of action for a lawsuit against the district or charter school if it’s found to be noncompliant by the Department of Education.
More than 200 anti-LGBTQ+ laws have been introduced in almost 40 states this year. In Oklahoma, the passage of Senate Bill 615 came after Gov. Kevin Stitt signed a bill barring trans girls and women from playing on female sports teams and one banning nonbinary gender markers on birth certificates. Rep. Kevin West, R-Moore, one of SB 615’s sponsors, said he wanted to respond to Stillwater Public Schools’ bathroom policy through legislation.
Stillwater introduced a policy in 2015 allowing students to use the bathroom based on their gender identity, which refers to inner feelings of whether a person is male, female, neither, or a gender mix.
Trans students’ gender identities don’t line up with their sex assigned at birth, meaning they identify themselves and often dress like another gender typically does.
In April, Oklahoma Attorney General John O’Connor and Secretary of Education Ryan Walters wrote letters to the Stillwater school district calling for changes to their bathroom policy based on administrators’ “incorrect interpretation of Title IX.” That same month, the Stillwater School Board voted unanimously to ask the Oklahoma Department of Education and the Oklahoma State Board of Education to give school districts rules for trans students’ bathroom use.
West said he doesn’t anticipate many school districts stationing a teacher outside of the bathroom to monitor who enters. Instead, he said, most will probably allow students to report classmates who they believe aren’t in the bathroom that aligns with their sex. Once a teacher is alerted, they will confirm the student’s sex with the principal and decide whether they broke the law.
Additionally, he said, regardless of whether a school district decides to implement hall monitors, teachers will be able to monitor which students go to what bathroom, to an extent.
“The point is not to ever make a huge big scene in between classes when everybody’s in the hallway and embarrass a whole bunch of people because it truly is about just the dignity and the privacy of every student,” West said.
State Sen. David Bullard, R-Durant, represents District 6, which includes Durant, Hugo and Atoka, and worked as a teacher in Denison, Texas and Durant. A cosponsor of the bill, he said his motivation for contributing was a desire to protect students’ privacy. He also cited American Family Association coverage, saying some states had reports of predatory behavior after instituting trans-inclusive bathroom policies.
“There’s quite a bit of evidence of that around the nation where you have people who are taking advantage of that policy and gone in and attacked, raped, taken pictures of, taken advantage of people in those dressing rooms or bathrooms,” Bullard said.
Oklahoma Watch was unable to find any reports of widespread predatory behavior in gender-affirming school bathrooms, although the American Family Association did reference a 2021 Virginia incident in an essay supporting a proposed Alabama law. Neither Bullard nor the American Family Association, a Mississippi-based conservative Christian activism organization, responded to multiple requests to clarify or substantiate Bullard’s allegation.
Before the law was signed by Stitt, Oklahoma House Minority Leader Emily Virgin, D-Norman, asked West if sponsors of the bill had been motivated by any sexual assault or other safety concerns in Oklahoma schools. West said he wasn’t aware of any.
A study from the Williams Institute at the UCLA School of Law published in 2018 compared findings in Massachusetts towns with and without gender-affirming policies. The authors found that the passage of gender-identity inclusive laws had no relation to the number or frequency of criminal incidents in public restrooms and locker rooms.
West said he spoke with O’Connor, who said he believed the best way to address the district’s policy would be through legislation. But Rep. John Waldron, D-Tulsa, a former Booker T. Washington High School teacher, said he’s seen this law proposed in various forms, but questioned the need for a broad, restrictive law.
“These matters are best handled by communities and we’re not giving them a lot of options when we say it has to be this way,” Waldron said.
The ability to use the bathroom that aligns with a student’s gender can reduce mental health harm, according to a 2022 report from the Trevor Project. That year, 21% of trans and nonbinary youth who attempted suicide went to non-gender affirming schools, and 18% went to gender-affirming schools.
Cynthia Mooney, the children’s behavioral health community coordinator at the Mental Health Association Oklahoma, said schools are already plagued with bullying and this law could increase that risk for trans students, who can be especially vulnerable.
Rosa Summers, Mental Health Association Oklahoma’s youth mental health coordinator, said the law is isolating and stigmatizing for trans students and could lead to increased suicidal ideation and suicide attempts.
According to the Trevor Project report, 29% of LGBTQ+ youth who attempted suicide in the past year have been threatened or physically harmed because of their sexual orientation or gender identity.
Mooney said the policy could also harm relationships between LGBTQ+ students and teachers who have established themselves as allies.
“What really concerns me is how, because this is tied to funding, that even those adults that want to be supportive, want to be a safe place, are going to have to follow some code or they risk losing funding,” Mooney said.
Logan Foster is a transmasculine high school student at Dimensions Academy, an alternative school in Norman. He said the student population is small and he’s found the staff to be affirming, so he doesn’t expect the law to affect his school as much as others.
Foster previously attended both Norman High School and Norman North High School and he said he can imagine how a bathroom bill could affect larger schools, where teachers aren’t as familiar with all students.
He’s also part of the Norman Youth Safe Haven, which offers a discussion space for youth who are or might be LGBTQ+. The group has put him in contact with younger trans students who are in the early stages of coming out, and who he said might feel the effects of the bill more closely.
“I know how middle school and young high school kids can be,” Foster said. “I’m afraid with this bill being passed that there are going to be transphobic kids who will potentially do a lot of harm, physical harm, to these trans youth.”
Oklahoma State Department of Education spokesperson Rob Crissinger wrote in an email that their staff is reviewing SB 615, and they’re aiming to have recommendations for school district guidelines ready for approval by early to mid-August, when most schools start.
As they wait for that guidance, administrators are considering options for implementation, though they don’t know exactly what will be allowed. Superintendents at Wynnewood and Newcastle Public Schools and a spokesperson from Stillwater Public Schools said they plan to use existing men’s and women’s bathrooms, as well as single-occupancy bathrooms for students who feel uncomfortable using either.
All three school districts said they’ll allow students to report classmates they believe to be breaking the law to their teachers. Barry Fuxa, the Stillwater spokesperson, wrote that his district also recently hired hall monitors for the junior high and middle schools. While making sure students are obeying the bathroom law isn’t their main focus, it will be one of their responsibilities.
In 2022, 5% of Stillwater’s state funding was $694,807.
Administrators are being placed in a complicated position between state and federal statutes as they consider how to implement the law.
In July, a federal judge in Tennessee granted an injunction blocking the Biden administration’s interpretation of Title IX, which protects students against gender identity discrimination. Attorneys general from 20 states, including Oklahoma, argued that the current Title IX interpretation keeps them from enforcing laws banning trans students from playing on sports teams and using bathrooms that align with their gender.
The federal Department of Education published its Title IX rule in June; the public comment period runs through September. The department will go through a separate rulemaking process regarding sports eligibility.
On July 19, the Oklahoma State School Boards Association told its members that while federal law usually supersedes state law, the injunction means that Oklahoma schools must follow SB 615 for now.
Other states have faced similar conflicts. In 2016, North Carolina passed the Public Facilities Privacy & Security Act, banning trans people from using bathrooms that aligned with their gender and barring local governments from implementing anti-discrimination policies that weren’t included in state law.
In April of that year, a federal court ruled in favor of trans students’ right to use the bathroom that aligned with their gender. That ruling both affirmed the Title IX guidance at the time, which protected students against gender identity discrimination, and meant North Carolina was in violation of federal law. The bill was likely to cost the state billions in both federal funding and lost business, and the next year, North Carolina lawmakers reached a deal to replace the law.
Newcastle Public Schools Superintendent Melonie Hau said as her district isn’t shifting its bathroom policy and she doesn’t expect any Title IX violations. She said other districts could be at risk for civil rights lawsuits, though.
Hau said she has concerns about the law contributing to a school culture that targets trans students.
“My job is not to be political, but to try to serve students and lead the district so that we can serve students the best way possible,” Hau said. “And I would say that our focus always is going to be on what we need to do to help students feel welcome and to help students understand one another and build empathy for one another.”
Putnam City North High School teacher and Gender and Sexuality Alliance faculty advisor Aaron Baker said he’s seen most of his trans students opt to use private bathrooms in his three years at the school. Still, he acknowledged that this method of bathroom use isn’t ideal for those students.
Baker said if there aren’t legal repercussions for doing so, he plans to refuse to report students to administrators, even if classmates claim they’re breaking the law. While he said he’s unsure whether it will be possible, he hopes that teachers, parents and students at his school can come to an agreement that refusing to comply with the law is the right thing to do.
“As a building and as a student organization, we’re seeing more success than ever before,” Baker said, citing a $10,000 grant from the It Gets Better Project that the school recently received to expand the reach of its Gender and Sexuality Alliance. “So we have big, big plans ahead regardless of what the legislature is planning on our behalf.”
Oklahoma Watch, at oklahomawatch.org, is a nonprofit, nonpartisan news organization that covers public-policy issues facing the state.