Matt Fairholm

Matt Fairholm addresses the Vermillion School Board Tuesday night in this image of the video stream of the meeting as the board considered a restroom policy in the Vermillion School District that addresses the issue of gender identity. Fairholm spoke against the policy, as did a majority of citizens who gave public input Tuesday.

The Vermillion School Board, on a 3-2 vote during a special meeting held Tuesday, Nov. 2 in Vermillion City Hall, approved the first reading of a restroom policy in the Vermillion School District that addresses the issue of gender identity.

School board members Rachel Olson and Jim Peterson voted no. Fellow members Shane Nordyke, Carol Voss-Ward and President Doug Peterson voted in favor of the policy.

The policy, if approved on its second reading during the 7 p.m. Nov. 8 regular school board meeting scheduled at Vermillion City Hall, would put into place steps that protect the legal rights of transgender individuals in the school district who feel more comfortable using restroom and eventually locker room facilities for the gender “with which they consistently, persistently and insistently identify.”

Board members made their decision after hearing public testimony for approximately an hour and spending approximately another hour fine-tuning the wording of the draft of a proposal that had been published on the school district’s web page well in advance of Tuesday’s meeting to give the public prior access to it.

One of the first changes the school board made was to the title of the policy. The board had, before Tuesday’s meeting, debated over naming the policy “Equity In Restroom And Locker Room Policy” or “Restroom And Locker Room Access Policy.”

The policy is now known as “Gender Equity and Access.”

“The communications and publications sections feel out of place in this policy if we’re going to call it a restroom and locker room access policy. It really doesn’t fit there,” school board member Nordyke said. “We could just consider this a gender equity policy or come up with a broader name that is not just limited to the restroom access … I think this is important for meeting the identified needs of those students,” she said, noting that including locker rooms in the title of the policy is awkward.

Changes that the school board made to the policy wording are noted below in parentheses under each paragraph, along with the discussion that led to those changes:

The opening paragraph of the policy reads:

Gender identity means a gender related identity of a person, regardless of the person’s assigned sex at birth. The Vermillion School District has established this policy to both foster an educational environment that is safe and welcoming for all students as well as comply with local, state, and federal law.

(The school board made no changes to the above paragraph.)

Procedure: Communication with the school is key. The District will make arrangements with students regarding dress code, restroom facilities, overnight accommodations on school trips, and participation in activities. These arrangements should be based on the student’s or parent’s wishes, be minimally burdensome, and be appropriate under the circumstances. The determination of consistently asserted gender may be determined in collaboration of any the following—parent/guardian, counselor, building administrator, and physician. As part of this process, the District may request documentation from the student or parents.

(The board struck the words “and locker facilities” from the second sentence. Discussion related to this change is below the paragraph in this draft policy with the header “Restrooms.”)

Confidentiality: A student has a right to keep their status as a transgender student private at school. The District shall keep this information confidential and staff shall not disclose this information unless legally required.

(Superintendent Damon Alvey noted that the second sentence had included the wording “essential staff” and board members agreed with his assessment that the term “essential” was not needed and should be removed.

“It’s really a word that’s not needed in the policy,” he said, noting that it’s assumed that all staff are falling under the guise of not sharing accessible student information. Doug Peterson, school board president, added that many school staff also would not have knowledge or awareness of students’ gender identity.

Communications and Publications: Pronouns and Name Changes – Pronouns used should be the choice of the student. A legal name change is not required for a student to use the preferred name for class lists, student activities, yearbook publications, etc. However, a student’s legal name must be indicated in the student’s official records. The District may list the student’s preferred name in the official records by listing it next to the student’s legal name with asterisks next to it until a legal name change is made.

(The board made no changes to this paragraph.)

Restrooms: All students should have access to restrooms that are safe, comfortable, and convenient. Absent a compelling, specific and documented concern for safety, the District shall permit a student to use the restrooms for the gender with which they consistently, persistently, and insistently identify.

(Nordyke asked Superintendent Alvey about the estimated time that modifications to the school district’s locker rooms would be completed and he replied the work should be accomplished in about eight weeks, at about the time of the Christmas break, adding that his hope that policy changes regarding locker rooms would not be made until the locker rooms are updated to the appropriate standards.

“Usually, I would not advise going through motions twice,” Brent Matter, school district attorney, said. “However, with the facilities not being adequate at the current moment, what I would advise is if you want to continue pursuing it, just remove it from the policy as it sits today. We have the language and then amend the policy in the future.”

The first sentence of this paragraph had originally read “All students should have access to a locker room, bathroom and shower facilities that are safe, comfortable and convenient.” The board decided to remove references to locker rooms and shower facilities Tuesday night and consider adding this wording back to this policy point as an agenda item at school board meetings beginning in January or perhaps December. The board’s decision to restore that wording would be driven by the anticipated completion of locker room revisions.

The board also decided to immediately change the word “bathroom” to “restroom” in the first sentence of this paragraph to add consistency to the policy and to add the word “compelling” to the second sentence.

“We had some discussion, both at the board level and committee level, about making sure that we were not going to have administrators getting frivolous or … inundated with concerns,” Alvey said, “so to add specific language, adding a standard, the word compelling was thrown out as an option there. So, absent a compelling, specific and documented concern just raises the level of what concerns should be.”)

Overnight Accommodations: Students shall be assigned to rooms based on their consistently asserted gender identity, accommodating additional privacy needs as requested.

(The board removed “Transgender” as the first word of the first sentence of this policy at the suggestion of school board member Rachel Olson. That is the only change made to this paragraph.

She earlier had asked if this paragraph could be modified to include non-transgender students so they could be included in the policy so that they, too, could request single rooms for overnight accommodations, if desired, for privacy needs.

“I think at this point it’s sort of assumed any accommodation would be discussed and validated,” Alvey said. “It’s just whether or not they’re all acted upon, I guess.”

“I guess in a perfect world, Margaret, when she becomes a senior in high school, she doesn’t know what friends of hers are transgender or not,” Olson said. “She may ask for an accommodation with whomever, and you may decline her, but she doesn’t need to know her friend is transgender, right? So, you shouldn’t decline her because she doesn’t have a reason to know her friend is transgender. Her parents, perhaps, are going to be the one asking for accommodation.”

“We’re not accommodating a request to not be housed with a transgender student, which would put us in a difficult position,” Nordyke said. “Anyone has the option to, if they feel uncomfortable with not knowing the status of the friends that they’re choosing to have a room with, requesting additional privacy. I think that’s the route that we go.”)

Activities: A student shall be permitted to participate in interscholastic activities for the gender with which that student consistently identifies (assuming the student is eligible otherwise), subject to the policies of the South Dakota High School Athletic Association and any compelling safety concerns.

(The heading of this paragraph originally was “Sports” and the board agreed to change that word to “Activities” at the suggestion of Doug Peterson.

Olson had suggested earlier during Tuesday night’s discussion that this paragraph be removed because of redundancy with the policies of the SDHSAA.

“Even though it’s somewhat redundant, I think it’s nice to have it included in the same space so that if you’re looking for all of the policies and wanting to know how they apply to your family, you’re not having to seek out the policies elsewhere,” Nordyke said. “I agree that it is a bit redundant in terms of our current practice, but sometimes that’s nice to have it in a section where it’s easily identifiable.”

Both Olson and school board member Jim Peterson continued to question the need for this paragraph. “Is there a need to have it there? Just put a referral,” he said, indicating a desire to remove the paragraph and replace it with a reference to the SDHSAA policy.

“... Subject to the policies of the South Dakota High School Activities Association,” Olson said, as she suggested trimming this paragraph down to primarily that wording. The board ultimately decided to keep this paragraph in the policy.)

The policy concludes with this paragraph which was not changed by the board:

This policy does not prohibit any facility within the Vermillion School District from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes so long as comparable facilities are provided.

Before voting on the policy, Jim Peterson raised a question he had asked at a previous meeting: whether school officials would notify parents of a student if that student began using school facilities that weren’t of his or her biological sex.

“I just want to know, even if there are laws or whatever, I just wanted to know …” he said.

“If a parent were to ask and that student is under 18, we would have to indicate that they have elected to do this. Is that correct?” Doug Peterson asked.

“No, that is not correct,” Matter said. “You do not have to identify.”

Jim Peterson asked if such a policy would be consistently followed by all administrators, counselors and other staff throughout all the buildings in the school district.

“It would be consistent,” Alvey said. “The administrators will be doing the same things. We would be following, basically, the advice of counsel which has confirmed that we couldn’t disclose that. If it’s an educational document in terms of a request that a student wants to change something in their school records, parents have an access right to those … but in terms of the conversations behind doors with counselors or administrators …”

“I’m not saying behind closed doors,” Jim Peterson said. “I’m just saying if a student came to school today, chose to change or be the gender they identify with, I as a parent found out, went to school to ask you or a principal, will they say, ‘don’t know’ or will they say, ‘yes, that’s true?’”

“I would say they would probably say, ‘you need to ask your kid,’ because we don’t need to get into the middle of that with a potential FERPA (Family Educational Rights and Privacy Act) violation when you have somebody under 18,” Alvey replied.

FERPA is a federal law enacted in 1974 that protects the privacy of student education records.

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