Covington Board of Education confronts new legal mandates on gender identity, sexuality

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The Covington Board of Education discussed new legal policies, including rules related to gender identity, human sexuality and controversial books, at a regular meeting Thursday evening.

The board discussed and completed the first reading of the revised legal policies furnished by the Kentucky School Board Association.

The revised policies come in the wake of this year’s state legislative session, which saw the passage of controversial bills related to human sexuality, gender identity and student access to books parents may deem inappropriate. The board will vote to either enact or reject the new policies at their next meeting on June 22.

They did not discuss the 87-page document in its entirety, instead focusing on a handful of changes about which the board members had questions. They began their discussions on the topics of personal time off policies, additions to graduation requirements and new mandates expanding the availability of automatic external defibrillators, or AEDs, throughout the district.

Then the discussion turned to changes in policy that restricted the discussion of human sexuality, gender identity, sexually transmitted diseases and similar topics in schools as well as new policies that establish mechanisms whereby parents can challenge student access to media they view as harmful.

Board of Education President Tom Haggard made it a point at the beginning of the meeting to acknowledge June as Pride Month and address the LGBTQ students in the district.

CIPS Board of Education President Tom Haggard. Photo provided | Tom Haggard

“Just want to wish everyone happy Pride, especially to all of our students who identify as LGBTQ,” Haggard said. “I hope you know this board supports you, will always support you. No matter what else happens in our state or in our country, we will do everything we can do to support you.”

The language of the new legal policies places restrictions on when and how a school district can broach the topic of gender identity, sexual orientation and sex education in classrooms.

The policy says that if a board or principal chooses to adopt a curriculum related to human sexuality, “instruction shall include but not be limited to” the following points:

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  • Abstinence from sex is the ideal goal for students and the only way to ensure total avoidance of sexually transmitted infections, unwanted pregnancy and other sex-related health problems.
  • Permanent, faithful monogamous relationships are the best way to curb sex-related health problems.
  • No student grades five and below will receive instruction on human sexuality or sexually transmitted infections.
  • No student of any grade level will “receive any instruction or presentation that has a goal or purpose of students studying or exploring gender identity, gender expression, or sexual orientation.”
  • Schools must notify and obtain parents’ written consent before a student in grade six or above receives any kind of sex education.

Haggard wanted to know if the changes only applied to school curricula or if they extended to interactions between students, teachers and staff.

“So like, for instance, our counselors, are they still able to talk to students who are struggling with their sexual orientation or gender identity?” Haggard asked.

Board Attorney Mary Ann Stewart replied, but she bracketed her response by saying that the policy was likely to be challenged in court in the future. She also pointed out the differing interpretations of the policy between state lawmakers and the Kentucky Department of Education, which has taken the stance that districts are free to choose whether or not to implement the restrictions on the discussion of human sexuality and gender identity, a point of view that’s in opposition to that of the legislators who sponsored the law’s passage.

Board Attorney Mary Ann Stewart. Photo provided | Adams Law, PLCC

Given that situation, Stewart said, “my advice would be to try to apply this in most conservative manner.” In other words, the district ought to adhere to the statute as it’s written.

She added that until a court challenge comes and is resolved, “we’re going to struggle with this next year,” when it came to conversations between counselors and students.

Next, the board discussed student access to controversial books and other media.

The new policy establishes a universal complaint process whereby a parent or guardian can challenge students’ access to books deemed as harmful to minors.

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The policy defines harmful as anything that “contain[s] the exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area, or buttocks or the female breast, or visual depictions of sexual acts or simulations of sexual acts, or explicit written descriptions of sexual acts; taken as a whole, appeal to the prurient interest in sex; or [is] patently offensive to prevailing standards regarding what is suitable for minors.”

“This is obviously another contentious kind of issue,” Haggard said. “But do we have training, or do we currently have a way to provide training to principals so that they’re comfortable enforcing this policy?”

“I think we’re going to have to,” Steward replied.

She added that if there was a “silver lining,” only parents with students in the district could make complaints.

Finally, Haggard asked about a sub-section in the policy titled “student privacy rights,” which deals with bathroom access based on a student’s professed gender identity.

“I feel like we do an excellent job at providing appropriate accommodations and supports to students who identify as transgender and non-binary,” Haggard said. “Basically, this policy would not allow us to do that anymore?”

“Yes,” Steward said.

The language in the policy states, “A student who asserts to school officials that his or her gender is different from his or her biological sex and whose parent or legal guardian provides written consent to school officials shall be provided with the best available accommodation, but that accommodation shall not include the use of school restrooms, locker rooms, or shower rooms designated for use by students of the opposite biological sex while students of the opposite biological sex are present or could be present.”

The policy lists acceptable accommodations as “access to single-stall restrooms or controlled use of faculty bathrooms, locker rooms, or shower rooms.”

“Do we currently have the facilities in all of our schools to adhere to this policy?” Haggard asked.

Assistant Superintendent Janice Wilkerson stepped up to the podium to address the question.

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Assistant Superintendent Janice Wilkerson at a Board of Education meeting on February 9. Photo by Nathan Granger | LINK nky

“We do,” Wilkerson said. “As you stated previously, our schools have done a tremendous job of having our children feel welcomed and served and taken care of.”

She considered her next remarks before saying, “and I’m gonna stop speaking.”

Haggard then asked if this new policy would conflict with Title 9, a federal law passed in 1972 that forbids schools receiving federal funding from discriminating based on students’ sex. Under current Title 9 provisions, schools are required to grant access to bathrooms that correspond with students’ professed gender identities.

“How do we deal with that?” Haggard asked. “When the state is making us come in conflict with federal law?”

“Basically, we have to follow the state law because we are an entity of state government,” Stewart said.

After discussing the contents of the new policies, the board had to confront what might happen if they voted the policies down.

“The most drastic consequence is you could be removed from the board,” Steward said.

She explained that if the board failed to enact the policies as mandated by the state, a member of the public could petition the Kentucky Attorney General to oust all of the members from their positions. Although an ouster petition would not guarantee removal, it posed an undeniable risk.

The board did have some wiggle room, though, Stewart said. It could pass a resolution protesting the state’s actions, although she pointed out the legislature was not currently in session. Individual members could also state that they found the new policies objectionable or offensive when they cast their votes, as a matter of public record, even if they eventually voted to enact them.

Board members must consider their actions in the face of these policy changes before voting to enact or reject them at the next meeting on June 22, which will take place at 5:30 p.m. at the district’s central office on 7th Street. The meeting will be open to the public.

Click here to read the full text of Kentucky School Board Association’s proposed policy changes.

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