Aug. 10 – ROCHESTER — With the threat of a lawsuit looming, Rochester Public Schools is confident in the legal foundation on which it has built its procedures for supporting transgender students.
It turns out that those threatening legal action are certain of it themselves.
With the two sides circling each other, it remains to be seen how the situation will actually play out. But if it does, it will likely include a discussion of the U.S. Department of Education’s interpretation of Title IX, which district officials frequently referenced in drafting the document.
“We have received unconditional confirmation that we are in full compliance with the federal Title IX law … and the Minnesota Human Rights Act,” said RPS Superintendent Kent Pekel.
Rochester Public Schools first established a set of guidelines for transgender and gender-expansive students in September 2023. The district’s school board subsequently codified those guidelines into procedures on July 17.
While the situation had been going on for months, it reached a fever pitch last week when the school district received a joint letter from the Wisconsin Institute For Law and Liberty and the Upper Midwest Law Center.
There has been controversy over several aspects of the district’s document, but the letter focused on the issues of parental notification and consent. The letter threatened the district with lawsuits if it “applies this policy to transfer a minor child without parental notification or consent.”
The district’s procedures require schools to share any information they have with parents if they request it. However, the district does not require schools to preemptively notify parents if their children request to use alternate names or pronouns.
Schools also do not have to ask parents’ permission if a child wants to use a different name or pronouns.
“Parents should not have to repeatedly and periodically check with school personnel to make sure the school district has not secretly allowed their child to transfer schools.”
The district has not responded to the letter from the two organizations.
However, throughout the months-long process of developing the procedures, district leadership repeatedly claimed that they were operating in alignment with federal Title IX regulations. When Board President Cathy Nathan announced in May that the district would be turning the guidelines into actual procedures, she said they waited to do so until the new 2024 Title IX updates came out on April 19.
On June 11, the school board held a study session on the proposed procedures, at which District Attorney Mick Waldspurger reiterated his belief that the district’s plans were consistent with federal and state regulations.
“I think these are certainly consistent with all aspects of the law,” Waldspurger said of the procedures at the time.
The 2024 Final Title IX Regulations are a 1,500-plus page document from the U.S. Department of Education that outlines “nondiscrimination on the basis of sex” for programs and activities that receive federal funding.
However, those opposed to Rochester Public Schools’ procedures are not convinced by the district’s argument that it is fully supported by federal law.
“I’ve heard a lot of poor justifications for this policy from a lot of lawyers,” said Luke Berg, associate general counsel for the Wisconsin Institute for Law and Liberty, who was one of the attorneys who wrote the letter to Rochester Public Schools. “You hear a lot of different legal arguments that are often rejected in court because they don’t actually make sense and they don’t make sense — one of them is Title IX.”
He went on to say that the 2024 Title IX document does not “directly address the question” that arose in Rochester. Instead, he said the most relevant passage that would apply is found under the section of the document headed “parental rights.” It reads:
“When a parent and a minor student disagree about a decision to file a complaint of sex discrimination, it is appropriate to consider a parent, guardian, or other authorized representative who has the legal right to act on behalf of that student in such matters.”
The school district’s procedures, however, do not explicitly conflict with that passage. While the district’s document explains that parental consent is not required for a student to use an alternate name or pronouns, it does not explain what schools should do if a parent or guardian specifically requests one thing and their student requests the opposite.
Will the tension ever escalate into an actual lawsuit? With a student body of over 17,000, it’s not inconceivable that a situation could arise that leads to a lawsuit. According to the 2022 Minnesota Student Survey, 1.4% of Rochester’s 11th grade respondents identified as transgender men, 0.9% as transgender women, 3.8% as nonbinary, 1.7% as agender, and 1.9% as “genderfluid, gender nonconforming, or genderqueer.”
