The Oklahoma Bar Journal September 2022

Equal Access Act (EAA) applies to public secondary schools that receive federal financial assistance and have a limited open forum. 53 The EAA requires public schools to provide equal access to and prohibit discrimination against secondary students desiring to conduct meetings within a school district’s limited open forum on the basis of the religious, political, philosophical or other content of the speech at such meetings. 54 A secondary school creates a limited open forum whenever it allows an opportunity for one or more noncurricular-related student groups to meet on school premises during noninstructional time. 55 The EAA is not to be construed to limit the school district’s authority to maintain order and discipline on school premises, protect the well-being of students and staff and assure that attendance of stu dents at meetings is voluntary. 56 The majority of courts address ing student-led gay rights or gay/ straight organizations seeking recognition from a public sec ondary school have held that the group must be recognized. 57 Where the stated purpose of the organization included promot ing tolerance and acceptance of students regardless of sexual orientation, creating a safe and respectful learning environment and working with the school administration and other school clubs to end prejudice and harass ment, the court found that the group had to be recognized by the school district. 58 However, a school district’s denial of a club’s application based on the fact the club’s website included links to websites with obscene and sex ually explicit material and the club’s stated goal of educating students as to safe sex directly

CONCLUSION

ABOUT THE AUTHORS

Those courts that have con sidered the issue of Title IX and transgender students have con cluded that discrimination on the basis of sexual orientation and gender identity constitutes discrimination on the basis of sex and is prohibited by Title IX as well as the Equal Protection Clause. Neither Oklahoma courts nor the 10th Circuit Court of Appeals has ruled on the rights of Oklahoma’s transgender stu dents with respect to the use of bathrooms and locker rooms. On April 23, 2022, in response to a request from Stillwater Public Schools, State Superintendent of Public Instruction Joy Hofmeister requested an attorney general’s opinion from Oklahoma Attorney General John O’Connor. The request specifically relates to the usage of bathroom facilities within the school district based on a stu dent’s gender identity. In May 2022, Oklahoma enacted a new provision of law that requires students to utilize multiple occupancy restrooms or changing areas based on their sex as identified on the student’s orig inal birth certificate rather than their gender identity. 60 If the leg islation is challenged in court, the 10th Circuit may have an oppor tunity to address the questions already addressed by the 3rd, 4th, 6th, 7th, 9th and 11th Circuit Courts of Appeals. Depending on the 11th Circuit’s en banc decision in Adams , it is possible the United States Supreme Court will be asked to weigh in if a split in the circuits develops. Until there is a definitive case in this area, the law remains uncertain in the 10th Circuit.

Laura L. Holmes was admitted to the Oklahoma Bar in 1991 and has practiced education law since 1992. Ms. Holmes

is currently a shareholder with the Center for Education Law, a private law firm that limits its practice to the representation of schools in Oklahoma. Laura L. Holmgren Ganz was admitted to the constitutional and school law since 1987. Ms. Holmgren-Ganz is currently of counsel with the Center for Education Law, a private law firm that limits its practice to the representation of schools in Oklahoma. Oklahoma Bar in 1987 and has practiced civil litigation, employment, ENDNOTES 1. Trevor Project, “National Survey on LGBTQ Youth Mental Health 2021,” https://bit.ly/3zyBhLq. 2. SB 2, 2022 Legislative Session. 3. The United States Department of Education is currently working on revisions to Title IX’s regulations. According to The Washington Post , draft text of the regulations indicates that discrimination on the basis of sex will be defined to include sexual orientation and gender identity. “New Title IX Rules Set to Assert Rights of Transgender Students,” Laura Meckler, The Washington Post , March 30, 2022. 4. 20 U.S.C. 1681. 5. Etsitty v. Utah Transit Auth. , 502 F.3d 1215, 1219 (10th Cir. 2007). Etsitty is no longer a valid precedent and is recognized as being overruled by Bostock v. Clayton County, GA , 140 S.Ct. 1731 (2020). Tudor v. Southeastern Oklahoma State Univ. , 13 F.4th 1019 (10th Cir. 2021). 6. Id. at 1219-1220. 7. Id. at 1221-1222. 8. Id. at 1222. 9. Hively, 853 F.3d 339, 341 (7th Cir. 2017). 12. Bostock v. Clayton County, GA , 140 S.Ct. 1731 (2020). The three cases involved an appeal from the 11th Circuit Court of Appeals ( Bostock v. Clayton County, GA , 723 Fed.Appx. 964, affm’d and rehr’g en banc denied, 894 F.3d 1335 (2018)), 2nd Circuit Court of Appeals ( Altitude Express v. Zarda , 883 F.3d 100 (2018)) and 6th Circuit Court of Appeals ( R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC , 884 F.3d 560 (2018)). 10. Id. at 345. 11. Id. at 351.

13. Id . at 1734. 14. Id . at 1737. 15. Id. at 1739. 16. Id . 17. Id . at 1741. 18. Id.

interfered with the school’s “abstinence only” policy. 59

SEPTEMBER 2022 | 19

THE OKLAHOMA BAR JOURNAL