Red Lion moves forward with forum on transgender students amid public furor

Red Lion Area school officials recently issued an emergency directive concerning the use of bathrooms by transgender students — walking a precarious line between student privacy and nondiscriminatory access.

But it also raised questions about transparency: Did the school board give proper notice for its decision?

The answer to that question, of course, is complicated.

The district's solicitor, Margaret “Meike” Driscoll, warned the board at its Dec. 1 meeting that it can only add action items if they are urgent and couldn't be added to the agenda 24 hours in advance. 

She said there is a reason why policies go through a long process.

Melissa Melewsky, an attorney for the Pennsylvania NewsMedia Association, said there is a provision in the Sunshine Act that leaves this matter unclear. The board members can add anything last minute to the agenda providing the majority of the board agrees, she said. 

“But when agencies do this, it defeats the purpose of the agenda requirements of the law,” she said.

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Ultimately, Red Lion school officials put forth a temporary directive requiring students to only use bathrooms or locker rooms that correlate with the gender on their birth certificates. However, students can also opt to use a gender-neutral bathroom provided by the individual schools.

On Monday, the school announced that it would hold a public forum Dec. 19 on the matter.

All of this began after several parents came to the board with concerns about trans students. According to the district, officials are aware of six trans students out of a total student population of about 1,450. Until recently, the schools had taken a more inclusive approach to public accommodations.

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The forum will be held at 7 p.m. Dec. 19 at the Red Lion Area Senior High School at 200 Horace Mann Ave., Red Lion. Speakers will be given a ticket when entering and given two minutes to speak. Speakers will be called up at random. A zoom link will be provided for online participation, as well. There is a feedback link for any who want to share their opinion.

Board member Carolyn Sedora requested a discussion and action item be added to the agenda during the meeting about bathroom and locker room usage "as it relates to boys, girls and all in between."  Sedora wanted to provide staff with guidance for the time being.

Melewsky said the emergency provision concerning public notification should only be used by governing bodies when absolutely necessary. If it isn’t, then this defeats the purpose of the act’s agenda requirements, which were created to require the public be given notice in case they want to be present or comment on the topic at the meeting. 

She said it is a “very problematic provision” that can be used inappropriately. 

Melewsky believed the intent behind the provision was for an emergency, such as cleaning up after a fire at a school that needed to open the next day. It had to be an issue that came up that day and could not wait to be addressed later, she said.

“I don’t know if that’s the case here,” she said. 

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Melewsky added this is the only way to interpret this provision. If it isn't, the agenda requirements are pointless. 

American Civil Liberties Union of Pennsylvania Deputy Legal Director Sara Rose said the options Red Lion gave its trans students are discriminatory because either option — using the gender-neutral bathroom or the facilities that correspond with one's birth certificate — have the potential to out the students and potentially leave them vulnerable to bullying and violence. For example, if the student presents as male and is forced to use the girl’s bathroom, it could be a problem and make people uncomfortable. 

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According to Rose, growing case law makes it clear that Red Lion's temporary order is discriminatory. She encouraged Red Lion parents and students to report any issues to the ACLU because they could have a solid case for legal action.

She also encouraged the public to encourage and support these students given the increasingly heated transphobic rhetoric in central Pennsylvania and the country at large.

“Even if the law is on their side," she said, "it’s incredibly difficult for trans students and their families to put themselves in the public spotlight and challenge these kinds of policies.”

On Thursday, a Pennsylvania panel, the Independent Regulatory Review Commission, signed off on setting definitions for sex, race and religious creed into the state's anti-discrimination regulations. 

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Mackenzie Arcuri, senior manager of media relations and strategy for the Pennsylvania School Boards Association, said the association creates policies when laws exist and provide clear direction. 

“While we support districts with these draft policies and counsel, this area of the law is unsettled,” she said. 

The association directs school boards to use experts and lawyers to help update board policies.

“We urge our members to work with the transgender students and their families compassionately and with respect for their privacy to meet the needs of individual students and provide all students with a safe and supportive school environment,” she said. 

Arcuri added that transgender students’ rights are still going through the courts. This is why it is so important for schools to work with their lawyers.

— Reach Meredith Willse at mwillse@yorkdispatch.com or on Twitter at @MeredithWillse.