Clarkstown schools host legal review of transgender rule; meeting stirs own controversy

WEST NYACK – Clarkstown’s school board held a special "informational" meeting Thursday to dig into the district’s policy regarding transgender and gender non-conforming students that has become a singular focus for many in the walkup to Tuesday’s school elections.

The meeting, addressing a policy that has split the community, was not without controversy itself.

The Equal Opportunity and Nondiscrimination Policy, or simply 0100, was passed 5-2 by the Clarkstown school board in December 2023. The policy outlines the rights of trans kids to use facilities aligned with their gender identity. Hundreds have turned out to school board meetings, with dozens lining up to comment in favor of, or against, the policy.

Critics say it goes too far and puts students at risk; supporters say it is aligned with New York State law. Many have questioned, specifically, trans students' access to facilities, particularly bathrooms and locker rooms that align with their identity rather than how they were identified at birth.

A legal opinion presented Thursday at the special meeting laid out the rights of all students, including trans students, in New York.

“... While I commend the Clarkstown Board of Education for adopting a policy that is inclusive of transgender students, the right to access school facilities exists irrespective of local policy,” New York State Department of Education counsel Daniel Morton-Bentley wrote in a May 14 letter. He added: “The current of legal equality flows in a single direction — and cannot be held back.”

Jay Worona, general counsel for the New York State School Boards Association, who attended the meeting remotely, said failure to follow state education law could lead to board members' removal and/or withholding of state aid.

Access exists 'regardless of local policy'

The district policy could be altered, rescinded or updated by the board, Worona said, but the gist of the regulations would remain because they are baked into state and federal law.

He cited Title IX, which is part of federal non-discrimination law, and GENDA, or the Gender Expression Non-Discrimination Act, which is part of New York State's human rights law.

The state Dignity for all Students Act, or DASA, mandates a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying for all students.

Worona said many districts in the state have passed their own policies regarding trans students and facilities. But he added, "even if the district didn't pass this policy, (Clarkstown schools) would still have been at the same juncture."

Report concerns to school

Superintendent Marc Baiocco responded to several questions about safety and protections, especially for cisgender girls worried about safety in bathrooms and locker rooms.

If any students violate the Code of Conduct or if criminal acts are alleged, Baiocco said the district works with the Clarkstown police. "If you have a concern about the safety of a daughter or son," Baiocco said, "tell your school."

Baiocco explained that a student cannot simply switch gender identities at school. A child study team is involved, and any decisions are determined "on a case-by-case basis." That would go for any discussions and information-sharing with a parent. "There is nowhere that would suggest we withhold this information in perpetuity," he said.

Worona and Baiocco addressed concerns that some students may be uncomfortable with a trans kid's presence. "The way you satisfy the discomfort cannot be to (erase) someone else's civil rights," Worona said.

Addressing everyone's discomfort

Baiocco said students are afforded private space if they are uncomfortable and their concerns are addressed and taken seriously. The school can find ways to help any person who wants more privacy; for example, the superintendent said, there are private bathrooms and curtained changing areas.

In response to a question about whether a family could sue over the issue, Worona said "everybody can sue over everything." But, he said, he would expect that a lawyer would hesitate to take a case with such a body of law to support rights.

He added: "The law of New York is, indeed, protective."

Controversy over meeting itself

Thursday's meeting, attended by about 30 in person and more who watched remotely, was not without its own controversy.

The two board members who had originally voted against 0100 were not able to attend.

Trustees Tammy Bierker and David Gosman both said on social media that they had flagged their inability to be at the meeting in person or remotely due to previous commitments.

Gosman is not on the May 21 ballot. Bierker is running on a slate with Jason Bass and Yelena Glukhova. Another slate includes incumbent Trustees Christine Alia and Irene Tagaris and Donna Gropper. There are three, three-year seats up.

Clarkstown school board President Zizette Deutsch said at the beginning of the meeting that the issue was one that was pressing, and residents should be given all details from recent information received by the district.

Deutsch said that neither Gosman nor Bierker sent in questions. Board members at the meeting asked questions after the public's questions were read.

This article originally appeared on Rockland/Westchester Journal News: Clarkstown NY transgender policy in schools discussed by lawyers