A new statewide ban on transgender girls competing on girls high school sports teams isn’t something local school board and other officials are exactly rushing to embrace, with the first discussion at a Juneau Board of Education meeting Tuesday night featuring comments about the policy being “immoral” and illegal.
The general agreement among school board members and other participants at the meeting at Juneau-Douglas High School: Yadaa.at Kalé is more information is needed before taking any number of possible actions ranging from compliance to a lawsuit challenging the policy.
Among the reasons cited is the possibility the Juneau School District will face adverse consequences no matter what — either by violating the city’s non-discrimination bylaws and possibly the Alaska Constitution if it complies, or being banned from sports run by the Alaska School Activities Association if the district doesn’t implement the policy.
For Emil Mackey, the school board’s vice president, the concern also involves memories of a situation when he was in Arkansas decades ago when Black players weren’t allowed on athletic teams.
“I’m not going to support a bigoted policy by ASAA, the state of Alaska or anybody else,” he said during the meeting. “It’s unconstitutional. It’s immoral. And frankly it’s outside of what we should be doing.”
The ban approved Oct. 9 by ASAA, which officially takes effect 30 days after the vote, came after months of efforts by Gov. Mike Dunleavy and the Alaska Department of Education and Early Development to implement gender-restrictive policies that have been approved in numerous other states. Supporters of the policies cited factors such as competitive fairness, safeness of female athletes in locker rooms and parents having the right to know about gender-related matters involving their children.
The ASAA policy isn’t an outright ban on transgender athletes in high school sports. Instead it allows 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.
But there is no specific guidance by ASAA to districts or schools about how to implement or enforce the policy. Emily Wright, an assistant attorney for the City and Borough of Juneau, told school board members Tuesday night there are numerous unanswered legal and practical questions — beginning with whether the policy will specifically apply to any local students.
“Right now we’re not aware that any student is affected by this,” she said. “However, we understand every student is affected by this.”
If a local student would be directly affected, the school district could request ASAA grant a waiver from the policy, Wright said.
“ASAA would look at two things: is the situation unsafe for the student or is there an unfair competitive advantage,” she said. “We don’t know what either of those terms mean and ASAA has not defined them.”
Wright said she expects legal challenges within the state to the ASAA policy and local officials are monitoring cases in other states. But she said she expects the matter to eventually reach the U.S. Supreme Court because of differing rulings from different federal district courts.
However, that process is likely to extend well beyond the current year and in the meantime the Juneau School District is facing significant impacts depending on what decision officials make regarding the ASAA policy, Wright said.
“If the school declines to monitor a student’s gender, or check a student’s gender, or participate in this new bylaw with ASAA there are some ramifications,” she said. “The most serious of which would be the loss of ASAA membership, which means no interscholastic team participation. There are also fines up to $2,500 that can be implemented on the school per event. And if ASAA were to find out that somebody had participated and maybe the school knew about it there could be a forfeiture of the wins for those games.”
There’s also questions about verifying somebody’s birth-assigned gender since the state is asking districts to rely on birth certificates rather than other options such as medical evaluations, Wright said. She said “there’s lots of reasons you could lose a birth certificate.” Plus, she added, the Alaska Constitution contains a strong privacy clause that might make required disclosure of certain personal information illegal.
“You can change your (district) bylaws and then you would be in compliance bylaw-wise (with ASAA), but you would also be in violation of the CBJ code,” she said. “And there again is some argument that you would be in violation of the Alaska Constitution, the right to privacy. So yes, there are a lot of options where you are maybe trying to comply and are still not complying — or you just say ‘we’re not going to comply because it’s wrong.’”
School Board President Deedie Sorensen, who has called the ASAA policy “a solution without a problem,” noted board members will have a chance to hear what other officials in other districts statewide are thinking during the Association of Alaska School Board’s annual conference Nov. 9-12, so it makes sense to revisit the issue during the local school board’s next scheduled meeting Nov, 14.
“My takeaway from this conversation is that we need more information about potential impacts to us relative to decisions that we make going forward,” she said, adding “we will be having an opportunity in the next few weeks to have a conversation with board members from around the state, which might also give us some sense of what might be coming down the legal causeway.”
Anchorage School District Superintendent Jharrett Bryantt told Alaska Public Media this week, he believes “local school boards could have decided this issue for themselves” and “above all I want to make sure that ASD has inclusive spaces for all students.”
“The other complicated piece to this is that ASAA has implemented these bylaws in the middle of a sports season, which is very jarring for students and families,” he said.
The Matanuska-Susitna Borough School Board became the first in Alaska to pass a transgender sports ban in June of 2022. In July of this year the the Kenai Peninsula Borough Assembly passed a resolution 6-2 supporting the state education board’s transgender sport ban that became the basis of the ASAA policy.
• Contact Mark Sabbatini at firstname.lastname@example.org or (907) 957-2306.