The Juneau Board of Education unanimously voted Friday to seek outside legal advice regarding a newly enacted statewide ban on transgender girls participating in girls high school sports, apparently becoming the first district in the state to take such an action that could result in a lawsuit challenging the policy.
The vote occurred after the board met in executive session at midday to discuss the policy by the Alaska School Activities Association that took effect Nov. 11. The board consulted with City and Borough of Juneau attorneys during two previous meetings, with school board members generally denouncing the policy, and legal staff saying it violates city ordinances and possibly the Alaska Constitution.
Board member Will Muldoon, who made the motion for the city’s legal staff to meet with outside counsel, said in an interview after the meeting he is unaware of any lawsuits to date against the ASAA or similar actions taken by other school boards.
“My understanding is we are the first to take this action,” he said.
The board’s vote is a step toward a possible lawsuit, not a declaration of an intent to file one, Muldoon said.
“At this time it is simply in furtherance of those efforts,” he said.
The ASAA policy isn’t an outright ban on transgender athletes in high school sports. Instead it would allow multiple divisions to be established, with one exclusively for “females who were assigned female at birth,” with transgender girls eligible to compete in a coed or boys team.
Juneau School District officials have stated it is unknown if the policy would directly affect any local students.
Emily Wright, an attorney for the City and Borough of Juneau, told school board members at their Nov. 14 meeting that one option is to continue the current district policy of allowing students to participate in activities in a manner consistent with their gender identity. If a situation arose involving a transgender female high school athlete, a school could request a waiver from ASAA on behalf of a student if a violation is reported. However, she said it could also mean a violation that might result in fines, forfeitures of games and/or exclusion from ASAA-sanctioned activities.
Wright, in an interview Friday, said the step of involving outside help with expertise in such legal cases is “purely looking to partner on a case that has kind of broad-reaching implications.”
“It’s a big case,” she said. “The city attorney’s office (and) my ability to handle this case is there. The school district allowed us to communicate with other attorneys to potentially have expertise outside. We don’t have a set of attorneys yet. But perhaps we would want to reach out to the ACLU and find out what they were doing in Idaho. Perhaps we would want to reach out to other municipality law offices to see what they’re doing. And we wouldn’t do that without permission from the board.”
A statement issued by the Juneau Board of Education on Friday afternoon stated the new restrictions “have far-reaching effects, into families’ homes and lives.”
“Under these new ASAA bylaws, parents cannot decline to answer questions in a new birth certificate examination without ramifications for their students, and schools cannot decline to monitor a student’s gender or check a student’s gender,” the statement notes. It adds, “students don’t shed their constitutional rights when they attend public school or play sports, and the Alaska Constitution has a strong right to privacy protection, which appears to conflict with the new State of Alaska regulation.”
While state regulations — assuming they’re found to be legally valid — supersede city ordinances, Muldoon said the fact there’s a conflict between the two is part of the reason he supports exploring legal options.
“I would say is that as an elected official one of the things I am prohibited from doing is knowingly violating all municipal, state and federal laws,” he said. “We cannot explicitly direct staff to violate the law, we just cannot do those things. So it is a difficult item when the change made in the Alaska Administrative Code is in contradiction to CBJ Municipal Code and also our policies.”
There is no definitive timeline for city legal staff to report the results of their consultations, but Muldoon said he expects the matter will again come up at the school board’s next regularly scheduled meeting Dec. 12.
Wright said given the scope of the legal issues involved “a fair timeframe is really early January before we would make any further recommendations to the board about filing a lawsuit.”
• Contact Mark Sabbatini at firstname.lastname@example.org or (907) 957-2306.