The Central Bucks school board will revisit a proposed policy to restrict transgender student athletes next month, but a conservative, religious liberties law firm has already provided it with a copy of the regulations for enforcing it.
In March, senior attorney Jeremy Samek of the Harrisburg-based Independence Law Center, sent Central Bucks Superintendent Abram Lucabaugh and Pupil Services Director Alyssa Marton a copy of the draft regulations, which the district requested, according to an email obtained through Right to Know.
The ILC is the same law firm that reviewed and assisted with the drafting of the district’s controversial library materials policy 109.2 last year that restricts content deemed inappropriate for sexually explicit content and nudity.
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Central Bucks appears to be the first Bucks County school district to consider a policy restricting the participation of students who identify as transgender on opposite sex athletics teams.
Neither a district spokeswoman, school board President Dana Hunter or Samek responded to emails sent Aug. 16 asking about the policy and the administrative regulations.
The proposed regulations call Policy 123.3 “one of those few situations where sex is relevant and justifies differential treatment,” and that separate athletic teams based on biological sex “preserves fairness, provides increased opportunities for girls and are safer.”
The regulations also include language that school athletic teams “shall not be segregated on the basis of irrelevant classifications,” including sexual orientation and gender identity.
Biologically female students can request a try out for male-designated teams if there is no female team, under the regulations, but it expressly bars allowing a student to try out for a team for “reasons of gender identity.”
Before granting an accommodation, the regulations require the athletic director to tell biological female students and their parents the student may have a “better opportunity to make a team and to have more playing time” if they tried out for a female team.
Also the regulations include an “undue hardship” clause that can deny an accommodation if it creates a problem for the district or violates other students rights.
Male students “who have not begun puberty,” could seek “reasonable accommodations” to play on a team designated for females, but a doctor’s note must confirm the student is pre-puberty, under the regulations.
The regulations also outline locker room use including a rule that while the opposite sex individual is in the locker room the facility is considered a “team room” and players may not change or use the bathroom.
In the March email, Samek wrote that he was providing the “AR Language” at the administration’s request and pointed out its existing policy 123 references males and females, “and the following AR can help implement that existing policy.” AR is short for administrative regulation.
Samek also attached a copy of highlighted PIAA bylaws that he said show “they treat females going to male teams with very few restrictions and males going to female teams is extremely limited.”
“The PIAA punts the question of who is a boy and who is a girl to the school and this AR explains how that can be done in a non-arbitrary manner,” Samek wrote. “Let me know once you’ve had a chance to review and we can discuss further.”
School board member Karen Smith, a vocal critic of the GOP-majority board, said that drafting administrative regulations before a policy is brought before the full board for consideration, is “not typical.”
Central Bucks spent months vetting its controversial library materials policy and its administrative regulations, though emails obtained through Right to Know show the Independence Law Center was directly involved in the drafting of both.
The Pennsylvania School Boards Association, which advocates and trains local members, supports “local control” and encourages districts to “establish a decision-making process that works best based on their specific needs and operations,” according to a spokeswoman.
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In emails obtained through Right to Know, minority board member Tabitha DellAngelo also expressed concerns that in November the administration and board had not included materials and research showing other viewpoints of the transgender athletes issue at a policy committee meeting.
“If it is not already planned, please offer information and testimony from other perspectives so that we can make an informed decision,” DellAngelo wrote.
The proposed transgender athletes policy was formally introduced earlier this month and it has already generated warnings from the Education Law Center in Philadelphia that the proposal violates federal and state anti-discrimination laws, and “further exacerbates the hostile environment for LGBTQ+ students.”
“A policy that considers only “reproductive biology and genetic makeup” and calls gender identity “irrelevant” ignores the science and reinforces harmful, discriminatory stereotypes about trans people. The proposed policy would clearly be prohibited by the proposed federal regulations expected to be finalized in October,” according to the Education Law Center statement.
The federal Department of Education is working on proposed changes in its Title IX regulations involving students’ eligibility for athletic teams. It would bar public schools from adopting or applying a “one-size-fits-all” policy that categorically bans transgender students from participating on sports teams consistent with their gender identity.
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