State officials on Tuesday weighed the legality of a move by three Westminster school trustees to satisfy both antidiscrimination law and their Christian principles, leaving school officials and parents in limbo about the fate of $8 million in annual state funding -- and the future of the district.
With the board majority holding firm to religious and moral convictions that gender is determined only at birth, Westminster remains the only one of California’s 1,056 school districts not to adopt a state-mandated antidiscrimination policy that lets school employees and students define their own gender. The district, whose board has five members, serves 10,000 children in kindergarten through eighth grade at 17 schools.
Monday, hours before a state-imposed deadline to comply with the law or lose some funding, trustees approved a policy that meets some of the state requirements but still does not allow victims of discrimination to define their own gender.
Should state education officials find that stance legal, the three trustees -- Judy Ahrens, Helena Rutkowski and Blossie Marquez-Woodcock -- would score a dramatic victory in the face of opposition not only from the state but from parents angry at the board majority’s willingness to jeopardize funding. Parents have mounted a recall campaign against the two trustees whose terms are not up this year.
Meanwhile, state Sen. Joe Dunn (D-Santa Ana) said Tuesday that he planned to attach to a bill, as early as this week, legal language that would give the state schools superintendent broader powers to take over school districts that defy the law.
“We should reject any attempt by them to rewrite California law in a way they are comfortable with,” Dunn said. “They need to stop playing games here and come into compliance. We can’t make an exception for one specific school district.”
But the lawyer hired by the three trustees last week to craft their legal defense -- replacing an attorney who had represented the district for 27 years -- contends that Westminster is on solid legal ground.
“Is it discrimination if a man claims he’s a woman and says he must be treated as a woman? We believe the answer, clearly under the law, is no,” said the new lawyer, Mark Bucher, who co-founded Education Alliance, an organization that helps get socially conservative school trustees elected in Orange County.
In the state law, “gender” is defined as “a person’s actual sex or perceived sex and includes a person’s perceived identity.”
Bucher argues that the phrase “perceived sex” is ambiguous and does not necessarily mean that districts must allow victims of discrimination to define their own gender. Instead, he argues, a victim’s gender may be defined -- as it is in the state penal code -- by how the person accused of discrimination perceives it.
At Monday’s emergency board meeting, the three-trustee majority adopted Bucher’s definition of “gender.” The definition makes clear that the “perception of the alleged victim is not relevant to the determination of ‘gender.’ ”
District officials on Monday sent the new language to Jack O’Connell, the state superintendent, whose legal experts were reviewing it Tuesday.
District officials said there was little they could do but wait. They fielded a few calls Tuesday from other districts around the state that are closely monitoring developments in Westminster.
“The implications that it has for the state are significant,” district spokeswoman Trish Montgomery said. “If they [state officials] were to accept this version, they have the question of what kind of standard to hold other districts to. Do others have the right to develop their own version or adopt our version?”
Trustee JoAnn Purcell, who along with board President James Reed has voted consistently against the majority on the issue, said that if O’Connell approves Westminster’s new wording, it will “open the door to a lot more problems.” She and Reed both want the state to take over the district.
“We’re hoping upon hope that Jack O’Connell or Senator Dunn will move as swiftly as possible to do away with the board,” she said. “We’re concerned about more irresponsible behavior by these three. They’re not friends of public school education, and Mrs. Ahrens would probably put us back about 50 years in civil rights.”
The Westminster case is an important test of how the state’s education code protects students, said Jennifer Pizer, a senior staff attorney with Lambda Legal, a national nonprofit legal advocacy group for gays, lesbians and transsexuals.
“The trustees are trying to carve out of the education code an important type of protection,” Pizer said. “They are trying to insist on gender conformity and withhold protection from young people who know they’re different.”
She said doctors recognize a condition called gender identity disorder or gender dysphoria, and experts say it is best to spot the condition early. “It’s very harmful for young people to take away from them the ability to identify who they are,” she said.