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Fayette parents file class action suit against SB 150, citing educational injustices

Five Lexington transgender children and their families filed a class-action lawsuit Thursday evening in Fayette County challenging a GOP-backed law’s pronoun and bathroom requirements in public schools.

Each of the suing plaintiffs, whose ages range from 10 to 17, attend Fayette County Public Schools. They claim the new law violates their fundamental right to public education, their individual right to privacy, free speech, freedom of thought and rights of conscience.

The controversial Republican-backed Senate Bill 150 passed earlier this year over Democratic Gov. Andy Beshear’s veto. It bans gender-affirming health care for trans minors, restricts classroom teachings on gender and sexuality, prohibits districts and schools from asking teachers and staff to use a trans student’s pronouns, and mandates districts create policies that prevent trans students from using restrooms that align with their gender identity. The lawsuit filed Thursday takes aim at the latter two restrictions and asks the Fayette County Circuit Court to block them from being enforced.

Attorney for the plaintiffs Doug McSwain on Friday said Senate Bill 150 is an unconstitutional law that violates Kentucky’s fundamental right to a public education, which has been recognized and protected since 1989 in the Kentucky Supreme Court decision in Rose v. Council for Better Education, Inc.

“SB 150 burdens that fundamental right in multiple ways and invades the rights of privacy of every child who attends public school and every parent who sends their child to public school,” McSwain said. “No school can do the things required by SB 150 if the law is to be applied without discrimination and arbitrariness.

“The law also violates Kentucky’s ‘Sex Equity in Education’ Act, a civil rights law that makes discrimination ‘on the basis of sex’ unlawful in the public schools,” he added. “The current Supreme Court of the United States has already interpreted what Title VII of the federal Civil Rights Act means, and its protections against sex discrimination include no discrimination based on ‘gender identity, gender expression, and sexual orientation.”

Kentucky’s civil rights laws follow Title VII’s protections, he said.

Fayette County Public School district spokesperson Dia Davidson-Smith said Friday morning: “We know that there are many questions surrounding the implementation of SB 150. Fayette County Public Schools is committed to providing a safe and welcoming environment for all students, working in partnership with families, and following the requirements of state law.”

Despite protests from the LGBTQ community, the Fayette County school board voted in late June to enforce the provisions outlined in SB 150. It makes clear schools must “not allow students to use restrooms, locker rooms, or shower rooms that are reserved for students of a different biological sex.”

The law also prevents the Kentucky Board of Education and Department of Education from enforcing policies or recommendations that faculty and staff use a student’s pronouns if those pronouns “do not conform to a student’s biological sex, as indicated on the student’s original, unedited birth certificate.”

Constitutional rights

The lawsuit challenges these parts of the law, and details incidents where each plaintiff was either misgendered by a school staff member, denied access to the restroom of their choosing, or had their privacy violated by staff making deductions about their individual gender without access to their original birth certificates. Plaintiffs argue that access to their birth certificates for the purpose of enforcing the standards of SB 150, as well as segregating the trans plaintiffs to use a different restroom than their peers, is a violation of their privacy.

A plaintiff pseudonymously referred to as “Child Poe,” who is 17 and a high school senior, came out to his parents as trans in 2020. He socially transitioned and has been using the male restroom for the last three years, according to the lawsuit. Because of the new law — and FCPS’s adoption of it — he must use the girls’ restroom, which is “humiliating,” the lawsuit said, because his female friends know him as a male. What he has opted to do, instead, is wait to use the men’s restroom on the campus where he’s enrolled in a dual-credit college course.

His “educational opportunities and success are disrupted when others intentionally refuse not to recognize or treat him in accord with his transgender identity as male,” the lawsuit states. “For these reasons, the Poe family considers (his) original, unedited birth certificate, and information regarding his chromosomes and at-birth anatomy, to be private and confidential.”

“Child Roe” a 10-year-old trans girl in the fifth grade, has been a student in FCPS for three years. Throughout that time she has used the girl’s restroom “without incident,” the lawsuit said.

On the first day of school in August, she told her parents she was “refused admittance to the girls’ restroom during a break in the school day when all children were permitted to use the restroom.” Instead, she was instructed to use another “special” restroom located on the other side of the school “nowhere near her classroom.”

Child Roe is female and physically appears female, the lawsuit explains. Students now know she wasn’t assigned female at birth because school personnel have “segregated her from other female students and made her use a separate restroom all by herself,” the lawsuit states. “This segregation invades the constitutional, statutory, regulatory and common law privacy rights” of Child Roe and her family.

‘One of many lawsuits to come’

Trans-rights advocate Mason Chernosky in June asked the Fayette school board to vote against the provision in SB 150 that prevents trans students from using the bathroom that corresponds with their gender identity.

In response to Friday’s lawsuit, Chernosky told the Herald-Leader, “I support the students standing up for their rights in their education system and, while I’m not a legal expert, I believe there is precedent on their side.

“I suspect this is one of many lawsuits to come across the commonwealth since Frankfort has chosen to put these school districts in difficult legal situations,” he said. “My hope is that the court will affirm that the policies put in place by SB 150 violates student’s constitutional right to an education.”

Friday’s suit is the first in Kentucky challenging the education components of SB 150. A separate lawsuit was filed in May by seven trans kids and their families, that challenges the law’s gender-affirming medical ban. Plaintiffs argue that outlawing hormone therapy and puberty blockers, specifically, violates the Fourteenth Amendment because it discriminates on the basis of sex.

Attorneys for the families in that suit also argue the law violates parents’ rights to seek and follow medical advice to safeguard their children’s health. The Sixth Circuit Court of Appeals on Thursday denied injunctive relief to Kentucky plaintiffs and plaintiffs who filed a lawsuit challenging a similar ban in Tennessee.