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Ken Paxton does not approve of transgender bathroom policies

Big surprise, right?

Best mugshot ever

Best mugshot ever

Texas Attorney General Ken Paxton on Tuesday issued an opinion saying the Fort Worth school superintendent who made headlines for formulating guidelines to accommodate transgender students exceeded his authority. Paxton also said that a portion of the guidelines instructing district employees not to out transgender students to their parents might violate state law.

Citing a part of the Texas education code, Paxton wrote that school district boards of trustees — not superintendents — are required to adopt policies while superintendents can only implement those policies “by developing administrative regulations.”

Attorney general opinions are not legally binding, and Paxton’s interpretation has no direct legal impact on the Fort Worth district.

[…]

The district has indicated that the board of trustees was not asked to vote on the policy because it is an “administrative guideline” — a policy that superintendents can implement without official board approval — that stemmed from a non-discrimination policy updated in 2011.

To ensure privacy of students, particularly in cases when the student has not disclosed gender identity status to a parent or guardian, Fort Worth ISD’s guidelines include a protection of privacy for transgender students, directing school personnel to only share information about the student’s gender identity and expression on a “need-to-know basis or as the student directs.”

In his opinion, Paxton indicated that portion of the guidelines violates state law to the extent that they “limit parental access to information about their child and operate to encourage students to withhold information from parents.” Policies dealing with “parental involvement with students’ gender identity choices” must be “addressed” by the school board before they are implemented, he said. He added that the guidelines “relegate parents to a subordinate status.”

In response to Paxton’s opinion, a spokesman for Fort Worth ISD said the district’s legal counsel was reviewing the opinion. “She will advise the superintendent as appropriate,” he added.

Scribner has stood by the guidelines and confirmed he will stay in his post. School board trustees have reiterated that they were in the loop on the policy change, with at least two saying they were surprised the issue had escalated.

Paxton was asked for this opinion by Dan Patrick, whose obsession with bathrooms is well established. I didn’t have a chance to read this opinion – which as we all know does not carry the force of law – when it first came out, but then thankfully John Wright spared me the need.

But nowhere in his nonbinding opinion does Paxton address the question of restroom use, and a closer review of the document reveals Patrick’s “victory” to be mostly hollow.

In the opinion, Paxton wrote that the guidelines violate state law by limiting when school officials can disclose a student’s gender identity to parents. However, FWISD representatives have already stated — in a brief to Paxton’s office cited in a footnote of the opinion — that they plan to revise the parental notification provisions to bring them into line with the Education Code.

David Mack Henderson, president of LGBT advocacy group Fairness Fort Worth, said Tuesday he expects those changes “will render General Paxton’s unenforceable opinion moot.”

Even before Patrick and other Republican lawmakers stormed into Fort Worth in April to call for Scribner’s resignation over the guidelines, school board Trustee Matthew Avila told the Observer that officials were likely to tweak the parental notification provisions, which LGBT advocates agree are on shaky legal ground.

“Generally, parents have a right to access their children’s information and control their upbringing,” Lambda Legal senior counsel Ken Upton said.

FWISD’s brief to Paxton’s office lists exceptions to this rule, including for child abuse investigations, and notes that a 2002 AG’s opinion determined there are “very narrow and unusual circumstances” in which student information can be withheld from parents. FWISD’s brief states that “absent such circumstances, District personnel involve parents in all student matters, including gender identity issues.”

With regard to a second question posed by Patrick, Paxton found that Scribner violated the Education Code by implementing the Transgender Guidelines without a vote from the school board — but only in the context of the parental notification provisions, which account for roughly four paragraphs of the eight-page document.

“While a superintendent is authorized to recommend policies to be adopted by the board, chapter 11 requires that policy decisions, like those addressing parental involvement with students’ gender identity choices, be addressed by the board of trustees prior to the development of any related administrative regulations,” Paxton wrote.

FWISD officials have said Scribner acted within his authority to implement the guidelines because they are an extension of the district’s 2012 nondiscrimination policy, which includes gender identity. The Education Code gives superintendents the authority to “ensure the implementation of the policies created by the board.”

So there’s less to this than meets the eye. Mostly, it’s an invitation for someone who has a kid in FWISD to file a lawsuit, much as Paxton has filed a lawsuit against the feds over their advisory on bathroom access. I firmly believe that in the end forces of darkness and cowardice like Paxton and Patrick will lose, but it will not be quick or easy getting there. There will be setbacks, and people will be hurt along the way. The only message these guys will ever comprehend is at the ballot box. Trail Blazers, Texas Monthly, and the Current have more.

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