Abby K-12 rescinds Title IX policy

By Kevin O’Brien

After hearing from concerned parents and consulting with an attorney on Monday, the Abbotsford School Board voted 4-3 to rescind a new policy that extended federal antidiscrimination protections to transgender students when it comes to sensitive issues such as which bathrooms they are allowed to use.

As a result of Monday’s action, attorney Tess O’Brien-Heinzen told board members that the district is no longer in compliance with new Title IX regulations and is open to a lawsuit by anyone who feels discriminated against due to their gender identity.

Still, with the controversial regulations blocked in 26 states as the result of pending litigation, a majority of board members felt comfortable enough to move forward without the new policy in place. Board members Eric Brodhagen, Eric Reis, Kraig Schindler and Sharon Archambo voted in favor of the motion to rescind, while Jim Hirsch, Ivone Vasquez and Gary Schraufnagel voted against it.

“I have no doubt that if this policy becomes our policy we’re going to drive families and students out of public education right into private,” Brodhagen said before making the motion to reconsider the policy, calling it a “business decision” to align with the public’s wishes.

Eight members of the public spoke out against the new Title IX policy at Monday’s meeting, and many more in the audience seemed to share their stance based on their reactions. Several of the speakers said they don’t want to discriminate against anyone, but they also want to make sure all students feel comfortable and safe at school.

Charlotte Smith was the first of several mothers to urge the board to hold off on im-

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plementing the new policy while a federal court injunction is in place preventing the Biden administration’s rules from going into effect in over half the states. Wisconsin is not one of those states, but Smith identified herself as a member of of Moms For Liberty, a parental rights group that has convinced a federal judge in Kentucky to block the rules in schools where its members send their students.

Smith said Title IX, passed in 1972, was intended to protect girls and women from discrimination by giving them equal opportunities and offering them their own sports and facilities. Under the new rules, she worries that a boy could identify as a girl just to gain access to girls’ bathrooms and locker rooms, and the district would be prevented from questioning the student’s claims.

“The new Title IX will completely destroy everything the original stood for,” she said. “By changing the definition of sex to gender identity, girls will be forced to undress in locker rooms with boys and will be afraid of speaking the truth regarding their concern, as it is considered discrimination.”

Natalyn Jannene, a former school board member, said she understands that board members are forced to make tough decisions, so she urged them to either table the issue until the legal challenges are settled or at least seek a compromise if the new rules are implemented.

“I ask that you create a private space for any student who feels uncomfortable changing in front of others,” she said. “This space should be available to all students who may need it.”

Three Spanish-speaking mothers in the audience had their comments translated by board member Ivone Vasquez, who told the rest of the board that the mothers do not agree with bathrooms being shared between boys and girls, and would like more information provided to them in their language so they can better understand the issue.

“Our opinion also matters,” one of the mothers said.

Shannon Reis, wife of board president Eric Reis, said she feels like the district already does a great job ensuring that all students feel safe and comfortable, and if a situation arises, she trusts that administrators will make accommodations to ensure everyone is treated fairly.

“I just don’t feel that we need Title IX to tell us how to treat our students,” she said.

Attorney offers advice

Board members spent about an hour discussing the Title IX issue with OBrien-Heinzen, who said at least 30 percent of the cases she deals with are related to new Title IX regulations that started being issued back in 2020 under the Trump administration.

Even before new Title IX regulations were put in place, O’Brien-Heinzen said school districts in Wisconsin were bound by decisions made by the Seventh Circuit Court of Appeals, which ruled in 2017 that the Kenosha Unified School District could not enforce its policy prohibiting a transgender student from using a bathroom based on their gender identity.

The Seventh Circuit Court revisited the issue again last year in a case against the Metropolitan School District of Martinsville, upholding its original stance and expanding the rights to locker rooms “under some stipulations,” O’Brien-Heinzen said.

The attorney also noted that protections for transgender students have been part of the district’s policy since 2020, but the new regulations that were supposed to go into effect as of Aug. 1 have generated multiple lawsuits and court injunctions preventing the U.S. Department of Education (DOE) from enforcing the new rules in several jurisdictions.

In the case involving Moms For Liberty, the group has submitted two different lists of schools from across the country, including several in Wisconsin, where its members send their kids. Abbotsford is not currently on the court-recognized list, but board president Eric Reis said he is confident that it will be added at some point.

O’Brien-Heinzen also went over an Aug. 8 memo from the district’s insurance company, CIC, which says the district is bound by Title IX as a federal law, and if the school board decides not to follow the new regulations, CIC will assign an attorney to mount a legal defense if the district is sued, but that attorney will work to reach an out-of-court settlement.

“You may have to pay out at least what is up to your deductible, and the insurer has the ability to settle the case without your consent pursuant to your policy,” she told the board.

Contrary to what some might believe, the Title IX regulations that went into effect on Aug. 1 do not effect transgender students’ participation in school sports, O’Brien-Heinzen said. The DOE has proposals for how athletics should be handled, but they have not been released yet.

However, she said the Wisconsin Interscholastic Athletic Association (WIAA) already has rules in place requiring biological males to undergo at least one year of testosterone suppression treatment before they can compete in girls sports. For biological girls, testosterone therapy is also required before participating in male sports.

O’Brien-Heinzen said the new Title IX regulations say that some segregation of students based on sex is allowable, but it must not cause more than “de minimis” (minimal) harm to those who identify with a gender other than the one assigned at birth.

Even if the board does not adopt the DOE’s preferred policy, O’Brien-Heinzen said the district is still subject to Title IX regulations and is open to legal action that would likely result in an enforced agreement. She said the loss of federal funding is possible, but in her experience, the DOE has never gone that route.

O’Brien-Heinzen urged district officials to take this issue seriously and not make spurof- the-moment decisions without involving students and their families.

“This is a hard issue, I know, for districts. It’s a sensitive one,” she said. “Parents do what they think is best for their children and are certainly very great advocates.”

Board member Sharon Archambo asked O’Brien-Heinzen if she could reassure local parents that are worried about the bathroom issue, especially during after-school events. The attorney said “absolutely not,” but if the district does have issues with “individuals who should not be in a bathroom,” officials could address it as a code of conduct violation or by calling the police.

“It has not been a problem,” said superintendent Ryan Bargender.

Board president Eric Reis said the district already makes a “great effort” to make sure all students feel “comfortable and safe,” and the new policy would actually limit the district’s ability to continue doing that.

“We have students right now who are not comfortable using the same locker room or restroom with anybody, and we try our best to make accommodations for them, and we will continue to do that for any student,” he said.

SPEAKING UP - Aracely Acosta, a mother in the Abbotsford School District, speaks to the school board Monday night about her opposition to a policy that could potentially allow biological boys into girls bathrooms. Listening are board president Eric Reis, left, and superintendent Ryan Bargender.

STAFF PHOTO/KEVIN O’BRIEN