Denver Public Schools have pushed back against the idea that the district is at an impasse with the government over demands about converting an all-gender bathroom back to single-sex facilities at a Denver high school.
In a letter sent to the U.S. Office of Civil Rights on Sunday, district officials said it’s tried several times to discuss a resolution with the government, but it has been unwilling. DPS, though, said it’s willing to discuss options with the federal government over East High School’s all-gender bathrooms — missing a deadline set by the U.S. Department of Education.
The district was given 10 days to comply with an order to change the bathrooms and other mandates. Instead, the district is asking the government to begin a 90-day resolution negotiation, the typical length the Office of Civil Rights gives to resolve complaints.
The crux of DPS’ argument is that Title IX does not prohibit the conversion of a girls’ restroom to an all-gender restroom. The federal government says it does.
On Aug. 28, the federal department of education notified DPS that it violated the Title IX civil rights law by converting a girls’ bathroom to one that is for all genders, which the federal government calls “discrimination” against female students. It ordered DPS to rescind district policies allowing students to use private spaces based on gender identity or face “imminent enforcement action.”
The following day, Denver Public Schools accused the government of “weaponizing” Title IX and called the ruling part of the administration’s “anti-trans agenda.”
Title IX, the federal law prohibiting sex-based discrimination in schools, states that districts “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”
'Willingness to Engage in Negotiation For Resolution'
Sunday’s letter, titled “Willingness to Engage in Negotiation for Resolution,” DPS said it recognizes that a resolution is critical to avoid further unnecessary enforcement action and litigation and is committed to full compliance with Title IX and all applicable civil rights laws.
The letter details how its attempts to resolve the conflict have gone unanswered by the Office for Civil rights. It said its communications with the government were limited to two phone calls and a letter. In one call, DPS says it tried to understand how an all-gender bathroom was a Title IX violation, the investigator said “it would be premature to say.”
“This lack of a substantive response creates a sense of incredulity and concern, as the investigator was the named point of contact in this case,” wrote Kristin Bailey, senior counsel and Title IX coordinator for Denver Public Schools.
The U.S. Department of Education did not immediately respond to a request for comment on DPS’s statement.
The Office for Civil Rights argued in August’s finding that the conversion burdened East’s female students by leaving them without a single-sex restroom on that floor, while male students still had one. It said a female student reported that when her friend used the restroom “boys kept staring at her, looking her up and down, kind of taunting her.”
Lacking answers from OCR about the course of action it wanted the district to take, DPS said it pursued what it thought might remedy the situation. It converted a boy’s bathroom on the same floor to an all-gender bathroom to address the disparity.
But the Office for Civil Rights said this did not fix the problem. It said it “created a hostile environment for its students by endangering their safety, privacy, and dignity while denying them access to equal educational activities and opportunities."
The district contends that the “new allegation” of a hostile environment was not investigated and is based on just three emails from non-direct witnesses.
It notes that the legal standard for a “hostile environment” is “unwelcome conduct [on the basis of sex] determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity.”
Similar Virginia cases
In a similar case, the federal government threatened to withhold millions in federal funds from five Northern Virginia school districts because the Office for Civil Rights found that the districts' policies allowing students to use bathrooms and locker rooms based on "gender identity" rather than biological sex violated Title IX.
But on Friday, a federal judge dismissed lawsuits by two of the districts against the U.S. Department of Education. He ruled that the federal district court didn’t have the power to weigh in on how the federal government distributes money. He wrote that the matter was better suited for the Court of Federal Claims.
It’s unclear how that case will proceed. The districts can refile the case there or appeal to the Fourth Circuit, which has ruled that a school board discriminated against a transgender student by banning him from boys restrooms. The five Virginia districts say they’re following the law. They haven’t lost federal money yet but have been placed on “high risk status,” which means they have to pay for education expenses up front first, then ask for a reimbursement.
