Dan Patrick’s False ‘Victory’ Over Fort Worth Bathroom Rule

Lieutenant Governor Dan Patrick walks past pro-LGBT protesters Tuesday inside the Fort Worth ISD Administration Building. He hosted a press conference where he spoke against the district’s new guidelines protecting transgender students, which he said could be used as a springboard to further advance his conservative "school choice" plan.
Republican Lieutenant Governor Dan Patrick walks past pro-LGBT protesters inside the Fort Worth ISD Administration Building in April. There, he spoke against the district’s new guidelines protecting transgender students.  John Wright

Lieutenant Governor Dan Patrick declared a victory Tuesday after Attorney General Ken Paxton said portions of Fort Worth ISD’s new Transgender Guidelines violate the Texas Education Code.

“Today’s Attorney General opinion is a clear and resounding victory for parents … who deserve a transparent superintendent and school board that follows the law,” Patrick said in a statement. “In light of this Attorney General opinion, and the overwhelming opposition to these policies, I once again call upon Superintendent [Kent] Scribner to pull down his illegal policies. If he does not, I call upon him to tender his resignation.”

The attorney general released Tuesday’s opinion just hours before the FWISD board discussed potential revisions to the guidelines in executive session.

Patrick, who requested the opinion from Paxton in May asking the attorney general to weigh in on the legality of the guidelines, has taken issue with them primarily because they allow trans students to use school restrooms based on gender identity.

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.”

But Patrick has characterized the guidelines as a new policy on restroom use that is separate from the school board-approved nondiscrimination rule.

At an April news conference in Fort Worth, Patrick railed against the guidelines as an example of “social engineering.”

“The [2012] policy that was put in place by the school district, which I support … was to prevent harassment and bullying of any student,” he said. “[The Transgender Guidelines are] proactive, making special accommodations for students. It’s totally different. It’s totally not the same. Don’t get that confused.”

Ultimately, the legality of the guidelines is likely to be determined by federal courts. Paxton has filed a lawsuit on behalf of Texas and 11 other states challenging President Barack Obama’s recent directive on trans students, which affirmed the FWISD guidelines.

LGBT advocates and other critics have accused Texas GOP leaders, in particular Patrick and Paxton, of using the bathroom issue as a political wedge. Paxton’s opinion came out on the same day as a poll from the University of Texas’ Texas Politics Project that found that 75 percent of Republicans believe trans people should be forced to use public restrooms based on the gender they were assigned at birth.

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John Wright is a freelance journalist based in Austin. Follow him on Twitter and Facebook.

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