#

Milford High School students may not have urinals in their bathrooms much longer as board members look for a compromise in the fight over a proposed policy regarding bathroom and locker room use by transgender and non-binary students. 

“We talk about our responsibility as school board members on a divided issue, which is to compromise. This is the compromise,” said board member Noah Boudreault.

Dozens of students, teachers, parents, and community members spoke out Monday night, most opposed to the policy which would bar transgender students from most bathrooms and locker rooms. Nate Wheeler, board vice chair, proposed the new policy which would, for example, prohibit biological males who identify as female from using bathrooms and locker rooms for female students. Those students would instead be required to use separate facilities.

Wheeler did not address the controversy during the meeting, though Chair Judi Zaino expressed dismay about the proposal and indicated she would vote against it.

“I would be acting with malice to put a population in danger, and that is why I feel the way I do,” Zaino said. “I do feel there is a degree of malice here, and that concerns me greatly.”

Boudreault’s counterproposal is to limit bathroom use for everyone. Students would only be allowed to use stalls in the bathrooms and changing stalls in locker rooms, with no changing in common areas.

The overwhelming majority of people who spoke out Monday night were opposed to Wheeler’s proposal, telling board members it was born of hate. They predicted it would directly lead to an untold number of trans students committing suicide. One resident said it was anti-science, claiming there are now more than two recognized genders. 

State Rep. Maria Perez, D-Milford, said school board members who support the policy ought to be ashamed of themselves.

“What this school board is trying to pass, it doesn’t adhere to human rights. Let them be. They are not doing anything wrong to you,” Perez said.

But there is a problem with female students being harassed in the locker rooms by transgender students, according to Samaia DeMarco, who recently testified in Concord about the bullying and harassment female students are experiencing in Milford. Marco told the Monday night meeting the policy is meant to keep the girls safe. The opponents were engaged in a bullying attempt to silence girls and women, she said.

“They’re claiming discrimination while ignoring children’s voices,” Demarco said.

Demarco also accused Perez of laughing as a female student who also testified in Concord about being harassed by transgender students.

“Do you feel shame for laughing at the little girl who shared her testimony,” Demarco asked.

The issue of public safety when addressing transitioning students has emerged as a significant topic in the wake of a high-profile case in northern Virginia, where a transgender teenager was found guilty of sexually assaulting a female student in a bathroom. Parents were outraged when they learned the biological male was transferred to another school, where he allegedly forced a second victim into a classroom, nearly suffocated her, and sexually assaulted her.

The result for the school district has been a lawsuit, the firing of the superintendent, and criminal charges against school officials.

It is not clear if Boudreault’s compromise plan is workable. His plan would eventually put stalls in all the bathrooms and remove urinals. The costs could be in the tens of thousands of dollars, and there is no current plan in place to fund the bathroom renovations.

Additionally, school board members learned Monday night schools are legally required to provide a certain number of bathroom facilities based on population. Limiting the use to stalls would likely drop the number of bathrooms below the required limit. There are also logistical questions about getting students changed in time for gym class if the space is limited.

The Manchester School District’s transgender student policy violates the state constitution which protects the right of parents to raise their children, according to a new filing in the lawsuit brought by a Manchester mother. 

The woman, who is known as Jane Doe in the lawsuit, is responding to the district’s motion to have the case dismissed on the grounds that the district has no legal obligations when it comes to telling parents about their child’s activities at school regarding sexual and gender identity.

The response, filed in Hillsborough Superior Court-North in Manchester and written by attorney Richard Lehmann, hits back at the district accusing school officials of interfering with Jane Doe’s rights as a mother by forcing staff to keep secrets from parents. 

“Knowledge that the school is actively supporting a child’s decision to transition to a different gender identity when a parent would believe a different response is in the child’s best interests is precisely the kind of information that a parent would be likely to consider in deciding ‘whether’ to send a child to public school or to choose some other option,” Lehmann writes. “However, the policy purposefully and intentionally interferes with the ability of a parent to obtain this information. The defendant argues that it has no duty to advise parents of a student’s transgender expression in schools. This too serves to burden a parent’s right to direct the education and upbringing of children.”

Lehmann also argues that Manchester’s policy, which requires school employees to withhold information from parents and to actively mislead parents at the child’s request, is a violation of New Hampshire’s Constitution’s Part 1, Article 2, which states all people “have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty . . . and . . . seeking and obtaining happiness.”

Lehmann notes the right of parents to raise their children has been recognized by the New Hampshire Supreme Court as a constitutional right.

“Our Supreme Court has recognized that: [t]he family and the rights of parents over it are natural, essential, and inherent rights within the meaning of the New Hampshire Constitution. Because of their fundamental importance, great judicial deference has been accorded parental rights,” Lehmann wrote.

Jane Doe learned in 2021 that her child, known in the filing as M.C., was using a different gender identity at school than M.C.’s biological sex, according to court records.

When Jane Doe confronted the school staff, M.C. ‘s teachers agreed that she had the right to step in as M.C. ‘s mother and direct staff to use M.C.’s natural identity and gender.

“I do think that a parent should be giving permission for their child to be called by any other name,” one of M.C.’s teachers wrote to Jane Doe.

However, soon after the teachers agreed to use M.C.’s biological identity, the school principal wrote to tell Jane Doe that the district’s policy makes that impossible.

“Good Morning [Jane Doe]. While I respect and understand your concern, we are held by the District policy as a staff. I have quoted our district policy below, which outlines the fact that we cannot disclose a student’s choice to parents if asked not to. If [M.C.] insists on being called [M.C.’s desired name] as a staff we have to respect that according to the policy or unfortunately we can be held accountable despite parents’ wishes,” the principal wrote.

No one in Manchester’s School Administrative Unit would talk to NH Journal in support of the policy. Mayor Joyce Craig, chair of the school board, also declined to defend it. No one on the school board’s policy committee agreed to speak about it, either.

The district claims in its motion seeking to have the case dismissed that the policy does not interfere with Jane Doe’s rights as a parent because she can use M.C.’s biological sex and birth name in the home. But in school, Jane Does has no right to say how her child is to be treated, according to the district’s motion.

“Whatever the scope of a parent’s rights vis-a-vis their transgender or gender-nonconforming children, they do not include the right to force a school district to act as a conduit for the parent exercise of those rights in this fashion,” the district’s motion states.

Lehmann argues the district’s position is akin to a Jewish family asking that their child receive kosher food or a Hindu family asking that her child be given vegetarian food, only to have the school staff keep secrets and lie to parents about what they are feeding the children.

“But when a school affirmatively acts in ways that hide these kinds of facts from parents, they violate the parent’s rights to direct the upbringing of their children, to become engaged in the child’s development, and to exercise their right to provide guidance,” Lehmann wrote.