Sexual orientation, gender identity added
to schoolâ�?�?s revised nondiscrimination policy Decision came after lengthy discussion, public input By David Lias
Plain Talk The Vermillion School Board, after receiving input from nearly 20 members of the community and a letter from Sioux Falls-based Equality South Dakota, agreed Monday to change the school district's non-discrimination policy to include the categories of sexual orientation and gender identity. The decision did not come easily, and did not have the board's unanimous support. District attorney Jim McCullough had amended the policy, and it was placed on its first reading May 11. McCullough based his revision of the local policy on wording currently included in state and federal law, which states that unfair or discriminatory practice on the basis of race, color, creed, religion, sex, ancestry, disability or natural origin is prohibited. The revision was required because two different policies were found to exist in two different places in the district's policy manual. "They didn't jive with each other, because one included age and the other one didn't," McCullough said. "Part of my instructions were to include age, so that's what happened." McCullough's revision to the policy also states that it is the policy of the school district to provide the protections of the Age Discrimination in Employment Act of 1967. Other language in the district's policy puts in writing that the district will administer its contracts and agreements in accordance with the principles in the policy, as well as any related specific provisions contained in the contracts and agreements and in the South Dakota Constitution. The district also prohibits threats, intimidation, physical harm, harassment or bullying for any reason. McCullough told the board that representatives of Equality South Dakota would like to visit with them if sexual orientation and gender identity weren't included in the revised policy. "From a legal standpoint, I think there are two competing schools of thought," McCullough said. "One is from a management or an employer's standpoint, to keep your exposure as little as possible and to limit the grounds to what's required federally and in state law. "The other is to be more inclusive," he said. "We do have liability insurance to cover us on these things. One concern I have for the Vermillion School District – I can't speak for any of the others – is we do have several contracts with The University of South Dakota, and the university does include sexual orientation, but it doesn't include gender identity." McCullough added that the city of Vermillion includes sexual orientation in its nondiscrimination policy, "and we do have some contractual agreements with the city." He told the board that the nondiscrimination policy would not apply to students. "There is a constitutional provision that states that we are to educate all children, and provide them a free, appropriate public education," McCullough said. "The constitutional provision says that the schools are open to all, and of course we have compulsory attendance laws, so this is really limited to employment matters." He told the board that its Professional Development Center (PDC) contracts with the university includes provisions that prohibit the district from discriminating on the basis of sexual orientation. "That may be creating a double standard for the people who are affected by that contract," McCullough said, "as opposed to people who are not. That's the concern that I have." The PDC program allows USD education students seeking master's degrees to work in district classrooms with Vermillion teachers as their mentors. Mark Bottolfson, school board president, asked McCullough if the district's policy should be similar to the policies of other entities with which it regularly shares contracts and agreements. "From a legal standpoint, I think it would be preferable to have your nondiscrimination policy in line with what you've signed up to do," McCullough said, "in some of your other contracts." "Why is that?" asked board member Shannon Fairholm. "If we sign a contract with the university, or with the city, and we abide by that contract, why does our policy have to come in line with them?" "For example, some of the people who are involved in the PDC center agreements are school teachers, and if we sign a contract that we will not discriminate on the basis of all the other grounds in addition to sexual orientation," McCullough said, "then we have given a teacher rights that other teachers who are not part of that PDC center are not getting. "At that point, it could be claimed that we are discriminating, that we are not giving equal protection to all of our teachers. We are taking similarly-situated employees who are signing a contract that says one thing for PDC employees and then having a nondiscrimination policy for employees who are not part of those (PDC) contracts." The Brookings School District includes sexual orientation and gender identity in its nondiscrimination policy, McCullough said. He added that he hasn't had any discussion with Brookings officials, but believes those categories were added because they regularly enter into contractual agreements with South Dakota State University. "The Board of Regents' contracts uniformly include that provision," McCullough said. "Does it open the door for any other types of specific groups – I can't think of an example – that want to be included in some form or another in our policy?" Bottolfson asked. "I suppose somebody could make a claim," McCullough said. "The difference is, I think, is that there are some court decisions being made that states to allow individuals to be bullied or treated differently either based on gender identity or sexual orientation is a form of sexual harassment and that can open up liability. Those court cases provide some precedent that there may be other requests from other groups in terms of legal backing." When asked by Bottolfson for his recommendation, McCullough said, "I would like to see the school board be uniform in the grounds of nondiscrimination between what they sign in other contracts and what is in this policy." That would include adding a sexual orientation category to the district's policy, since that category is included in university policy. "However, I wouldn't necessarily include gender identity," McCullough said. Fairholm asked McCullough if the language in the revised policy which prohibits discrimination on the basis of sex means that gender identity wouldn't need to be added to the district's policy manual. Fairholm noted that the letter the school board received from Equality South Dakota states that court rulings have found that discrimination based on gender identity is a form of sex discrimination as prohibited by Title VII of the Civil Rights Act of 1964. "Does this all fall under that umbrella?" Fairholm asked. "It can, yes," McCullough said, adding that several federal circuit court decisions have held that gender identity discrimination is a form of sex discrimination or sexual harassment. Board member Dave Stammer, a member of the district's policy committee, said committee members wanted to draft a nondiscrimination ruling that wouldn't require constant revision. "We felt that if we were staying with state and federal law, we're covered," he said. "We don't discriminate on sexual orientation and gender identity, but we don't discriminate on whether you're left-handed, and we don't have that written down, either." Steve Ward told the board that he favored the change in language of district's policy. "It's a welcoming thing for people who have been discriminated against historically for a long time," he said, adding there has been no history of discrimination based on whether a person is left-handed, or based on his or her eye color. "I think the practical thing for the school board to do is to pass this, and you won't ever hear about it again," Ward said, "because you're doing exactly what you're supposed be doing." Bottolfson noted that he is in agreement with McCullough's assessment, and asked the board for a motion to take action on the revised policy. Stammer moved to include a sexual orientation category to the district's nondiscrimination ruling. Before voting, board members heard input from several audience members who all favored including gender identity in school policy. Barb Goodman of Vermillion noted that when her children were young, she knew a family that had a child with questionable genitalia. "Before the child was even six months old, they had to make a decision on whether to raise that child as a boy or a girl," she said. "They didn't know, internally, whether that child was a boy or a girl. I think you should include gender identity because there are people like that in this world, that may make changes, particularly in college. They may be student teachers when they finally must face the fact that they've been raised one gender when in fact they aren't that gender." Elizabeth Giles of Vermillion asked the board to be as inclusive as possible with its nondiscrimination policy. "If any of you has ever been discriminated against, you don't ever know what it's like, so just take a step back into somebody else's situation, and imagine what that would be like. It is not only the right thing to do (to pass an inclusive policy), it also teaches our children that we don't discriminate," she said. "There are a couple of different ways of looking at this," said Robert Doody, who serves as executive director of the America Civil Liberties Union of South Dakota, based in Sioux Falls. He is also a member of Equality South Dakota's board of directors. "Discrimination based on sexual orientation has actually been found to violate the 14th Amendment, the equal protection clause. "Gender identity and sexual orientation are not absolutely together one and the same," he said. "But they are correlative to each other. So, by passing a resolution that includes sexual orientation and gender identity, you are double reinforcing. Recently, we found that gender identity has been litigated with some success under sex discrimination. But those cases are not clear. Doody said the ACLU's position is that adding both sexual orientation and gender identity categories isn't necessarily a broadening of the district's liability. "You are actually limiting your liability," he said, "by putting people on notice that this isn't going to be permissible. Every one of your employees will know that you can't discriminate based upon sexual orientation or gender identity, and it just takes care of a broad bracket of issues." "School districts are committed to protecting individuals' civil liberties," Fairholm said, "and I feel that our policy does that by following state guidelines and federal guidelines, and therefore, it is unnecessary to add to our most recent policy statement, which includes protection for groups or subgroups or of individuals, when the individuals that comprise these groups are already being protected under the policy we have." Brook McBride, pastor of the First United Methodist Church in Vermillion, commended the school board for its silent support of LGBT (lesbian, gay, bisexual and transgender) community in the district's workforce. "I haven't heard of any discrimination here against that group, but if that was to happen, if someone was struggling with that, you say you want to have safety for children, but if they see a teacher who is being discriminated because of that, how safe do they feel? I don't think children would feel safe at all, and that's something to consider," he said. McBride added that the only way employees of the district would know they were protected from sexual orientation or gender identity discrimination is by having it clearly listed in the nondiscrimination policy. Caitlin Collier, a Vermillion attorney, said the district's policy shouldn't be designed simply to protect the school against lawsuits. "I think it's all about what it is we want to teach our children," she said, "and how we want them to grow up." The school board, Collier said, has a responsibility to look beyond the present. "The board should not look at just the way things are now," she said, "but at the way things should be, and can be in the future … it's not about special groups. It's about treating everyone the same." Kelsey Collier-Wise of Vermillion noted that many school districts, cities, businesses and employers in South Dakota have included both sexual orientation and gender identity in their non-discrimination policies. "I don't think it is so crazy to think that both of these categories would be reasonable," she said. "I don't think it will open the floodgates for a whole lot of other things. I think that the fact that so many others have decided to adopt those (categories) is a sign that there is a good reason for it." Collier-Wise noted that adopting such a policy will show the progressive nature of the Vermillion School District, and serve to help attract a workforce made up of highly-talented educators. "We're not going to be able to attract people with money, we're not going to be able to attract people with fabulous benefits," she said. "But people will be able to say, 'Look at this school district and all of the progressive things it has done, and how much it cares about its teachers, and how much it protects them.' "That is just an extra thing that we can put out there to potential teachers, so we can get the best talent," Collier-Wise said. "I know how much you struggle with your budgets. I think that every little advantage that we have helps. I would just ask that you consider that." The lengthy discussion on this one item on the meeting's agenda concluded with the board amending its motion to include both sexual orientation and gender identity in the policy. The board, with the exception of Fairholm, voted to approve the motion.