Dunleavy administration pushes for policy change to limit trans kids in school sports

The Alaska education department is moving forward with a recommendation to limit the ways transgender kids can participate in school sports, amid no movement from the Legislature on bills involving transgender youths.

The move by Republican Gov. Mike Dunleavy’s administration follows his thwarted effort earlier this year to limit transgender kids’ use of bathrooms and locker rooms according to their chosen gender in public schools. Opponents say it is part of a pattern of Republicans nationwide attacking the rights of transgender youths — which has increasingly become part of the GOP platform spanning from presidential candidates to local elected officials.

In Alaska, an effort by then-Senate Majority Leader Shelley Hughes, a Palmer Republican, to ban transgender girls from competing in girls’ sports failed to pass the Legislature last year. Since then, Dunleavy’s administration has taken several steps to promote a policy shift that would mirror Hughes’ failed bill.

The Alaska Board of Education — made up of Dunleavy appointees — is set to decide on Thursday whether to advance a proposed regulation change to a 30-day public comment period. Once the public comment period is complete, the board can reconvene to decide whether to permanently adopt the regulations.

The new regulation proposed by the Department of Education and Early Development would bar transgender girls from participating in single-sex sports according to the gender with which they identify. Instead, the measure would require kids to participate in sports according to their sex assigned at birth, or alternatively allow transgender kids to participate in coed or boys-only teams, but not girls-only teams.

Acting Education Commissioner Heidi Teshner said she is not aware of issues that have arisen in Alaska related to the participation of transgender or gender nonconforming students in school sports. The impetus for the regulation change, she said, was a non-binding resolution adopted by the state board of education in March in a last-minute unannounced move, with no public input.

That non-binding resolution has been the subject of criticism due to the decision not to provide time for public comment before board members voted on the resolution. A letter from Anchorage School Board President Margo Bellamy to the Alaska School Activities Association board of directors in April explicitly asked that the non-binding resolution “not be depended on as the sole catalyst” for policy change.

The board of the Alaska School Activities Association, which administers high school sports, declined in its meeting last month to change the organization’s bylaws to limit participation of transgender kids in sports. Billy Strickland, the executive director of the association, said that without prior action from the education department, the association is likely to face lawsuits if it changes its rules. If the department changes its regulations, the association would be forced to follow suit with a change to its bylaws, he said.

In response to several emailed questions on the proposed new regulations Thursday, the governor’s office punted to Teshner, who serves as acting commissioner of the education department and has not been formally nominated for the role or confirmed by the Legislature as required in state statute. The governor’s appointee to lead the education department declined the post in March, two weeks after her nomination was announced.

Strickland said that he has had “five to six” conversations with the governor’s office on the issue of transgender kids in school sports since March, liaising directly with Deena Bishop, Dunleavy’s special assistant on education matters.

Bishop, who resigned from the position of Anchorage School District superintendent last year, has represented the governor on topics including his proposed “parental rights” bill, which would have limited the rights of transgender kids in public schools and would have placed restrictions on gender and sex education akin to a Florida measure that opponents have called the “don’t say gay bill.”

‘A statewide approach’

Twenty-one states already ban transgender students from participating in sports consistent with their gender identity, according to the pro-LGBTQ rights group Movement Advancement Project. Many of those states adopted their bans only recently; the first such piece of legislation passed in 2020 in Idaho. Now, the majority of states controlled by Republicans have such bans, while some Democrat-controlled states have doubled down on protecting the rights of transgender kids.

“In my estimation, the Legislature has weighed in and they have said that the current practice from ASAA and our current policies around interscholastic sports are appropriate and effective. There is no need to change them to specifically target and marginalize a vulnerable group of kids,” said Sen. Löki Tobin, an Anchorage Democrat. “The belief that some sort of specific policy needs to be created or established to address trans students in my mind is a fallacy.”

Tobin has raised concern over the possibility that by advancing a regulation change that mirrors proposed legislation, the education department could be illegally superseding the legislative process.

“I don’t understand why they’re spending time on this particular topic that for all intents and purposes and all arguments is currently being discussed in the Legislature,” she said. “They are trying to supersede the role of legislators and parents and school districts by imposing a statewide approach.”

Two new bills to limit transgender kids’ participation in school sports were introduced earlier this year by Rep. Tom McKay of Anchorage and Rep. Jamie Allard of Eagle River — both Republican members of the House majority. But neither was scheduled for a single hearing during the recent legislative session.

Tobin added that the state education department’s approach mirrors a policy already adopted in the politically conservative Matanuska-Susitna Borough, home to the only school district in the state to restrict transgender girls from competing in girls’ sports. The non-binding resolution that passed the state education board in March was introduced by Lorri Van Diest, a retired Mat-Su educator. Hughes, the lawmaker promoting the bill, also resides in Mat-Su.

Bishop, with the governor’s office, presided over the Anchorage School District when it adopted its current policy — which explicitly permits gender nonconforming students to compete according to the gender with which they identify. Before joining the Anchorage School District, Bishop served as the Mat-Su superintendent for five years, at the same time when Dunleavy served as the school board’s president.

“I don’t get why Mat-Su is trying to dictate the rest of Alaska’s politics. Arguably no one is trying to dictate what’s going on in the Mat-Su, so I’m not sure why they’re trying to dictate what goes on in the rest of Alaska,” Tobin said.

‘Why would we wait to protect students?’

Defending their push for new rules governing the participation of transgender kids in sports, proponents have pointed to instances in other states where transgender girls have outperformed cisgender girls.

“I can’t point to it in the state, but in other states there have been incidents where high school females have been hurt. Why would we wait to protect students? Why would we not try to stop it from people getting hurt in advance?” said James Fields, chair of the state board of education. “Why wait for there to be a catastrophe?”

Strickland said he is “OK with being proactive on potentially stopping something negative from happening.”

Hughes said that while concerns have not been made public in Alaska, she believes there are individual cases of transgender athletes in the state leading to issues of fairness for other athletes.

“People have kept it on the down low because nobody wants to … bring harm to any child that is struggling,” said Hughes.

The education department posted a version of the regulation change online in late May and then updated it several days later, on June 1. Teshner said that was the result of continued work by the Department of Law to ensure that the regulations would fall within state law.

“There’s conversations being had that I am not a part of that are potentially leading to changes,” Teshner said Wednesday, one day before the new proposal was posted online.

Department of Law spokeswoman Patty Sullivan said by email that she could not share the details of communications between the Department of Law and the education department because they were covered “by various privileges.”

Hughes said that whether or not the new regulation changes are adopted, legal challenges are imminent.

“There are going to be legal challenges either way,” said Hughes. “I want to come down on what I think is the best for students.”

She said if the state doesn’t change its regulations, eventually the families of cisgender girls could sue the state “because of robbed opportunities.” A court in Connecticut rejected claims by four cisgender girls who said they were unfairly forced to race against transgender athletes.

Hughes said eventually she hopes the decision is decided by the conservative-leaning U.S. Supreme Court. A court case in Alaska could be helpful in that scenario, she added.

“What happens in these various lower court cases then can be used at the higher court level,” she said. “Sitting back and waiting for the U.S. Supreme Court to act on this — I would feel like we’re not trying as hard as we should for the sake of our own girls here in Alaska.”

‘Meant to be a distraction’

Dunleavy has not publicly discussed his support for the policy change, but opponents of the change say that his public silence is in itself indicative of his support for the new policy.

“You have a governor who’s put out an anti-trans bill. So I think that the governor has a huge power and a responsibility and everything he does sends a very clear message. So I think that the buck stops with him. If he didn’t want these things going forward, he would have a chance to stop it,” said Rep. Jennie Armstrong, an Anchorage Democrat.

Members of the public can write to the board of education, call in or attend its June 8 meeting in-person in Kenai to weigh in on the issue. If the board chooses to advance the proposed regulation to a public comment period, Alaskans will again have at least 30 days to weigh in on the issue before the board meets again to make a final decision on the regulations.

If they are formally approved, which could happen as early as July, it would be up to the board of the Alaska School Activities Association to implement the new regulations, which it could do during its scheduled meeting in August. In that case, the new rules could be in place in time for the fall sports competition season.

Strickland said it would ultimately be up to individual school districts to ensure that students meet the criteria set up by the association — which could mean asking parents to provide copies of their children’s birth certificates and declare that the certificates have not been altered. Several states issue transgender people amended birth certificates, meaning that it could be difficult for some schools to track students’ “sex assigned at birth.”

“This is a distraction and it is meant to be a distraction. And the worst part of this distraction is — it is hurting kids. And it is debilitating to think that is what our state school board has decided to spend their time on,” said Tobin.