State agency: Dunleavy’s ‘parental rights’ bill could violate Alaska Constitution

A “parental rights” education bill proposed by Gov. Mike Dunleavy could be found to violate the state’s constitution, according to an agency charged with analyzing proposed legislation in Alaska.

Counsel for the Legislative Affairs Agency wrote in a memorandum requested by Rep. Jennie Armstrong, D-Anchorage, that Dunleavy’s bill “will likely raise challenges” under the Alaska constitution’s privacy clause, which is one of the strongest in the nation and has been used to defend abortion access in the state.

The legal opinion pertains to the provisions included in the bill that would ban gender nonconforming students from using bathrooms according to their preferred gender, and require schools to share medical information with parents and seek their permission when a child requests to use a different name or pronouns.

Dunleavy’s bill is scheduled for hearings in the House Education Committee later this week.

According to the memo, “prohibiting a gender non-conforming or transgender student from using the restroom of their choice, potentially requiring the student to abruptly begin using a different restroom, may publicly reveal the person’s status as a transgender or gender non-conforming student.”

Legislative counsel Marie Marx went on to write that “because disclosure of a student’s status as a transgender or gender non-conforming student could, at a minimum, cause embarrassment, humiliation, and anxiety, and in more severe instances subject the student to harassment or other harm, it is likely that a court would conclude that a transgender or gender non-conforming student has a fundamental privacy interest.”

A spokesperson for Dunleavy did not respond to a list of questions, including whether the governor had considered the prospect of legal challenges when crafting the bill. Instead, spokesperson Grant Robinson said the bill “does not dictate a particular approach but only requires that schools ensure the safety and privacy of all students” and said that schools can offer single occupancy facilities to avoid violating the rights of transgender students.

“We do not believe that a general requirement requiring procedures that provide the safety and privacy of all students triggers a constitutional violation,” Robinson said by email.

As for the provisions requiring that parents be notified when a student seeks to change their name or pronouns, Robinson said the bill “presents a fact pattern and question that has not been previously decided by Alaska courts.”

“Namely, when a student wishes to be publicly identified by a specific pronoun in the school environment, does notifying the parent of the student’s request, violate the student’s right to privacy, when the use of the pronoun itself will be a public action?” Robinson wrote.

Armstrong, the Anchorage Democrat who requested the legal analysis, said that “privacy is something that is very top of mind for gender nonconforming kids,” and that some children may feel unsafe about sharing their gender identity with their guardians.

“I want people to be thinking about this bill from all angles, and to see it for what it is, which is a bill that is harming kids,” said Armstrong, who shared copies of the memo with several members of the House Education Committee, including co-chair Rep. Justin Ruffridge, R-Soldotna. The memo was not shared with the committee’s most conservative members, including its other co-chair, Rep. Jamie Allard, R-Eagle River, who has called Dunleavy’s bill “outstanding.”

Legal challenges are unlikely to deter lawmakers or the governor, according to civil rights attorney Caitlin Shortell, who has successfully represented clients in lawsuits against the state.

“Legislators don’t generally care if something is unconstitutional. You can look at so many different laws that are passed and just be like, ‘what are these people smoking?’” said Shortell.

“Passing an unconstitutional law is their way up through the courts to test whether or not something would be — if it’s a law they want — approved,” she added.

The bill proposed by Dunleavy includes several provisions that have already been adopted in other Republican-controlled states, in some cases eliciting legal challenges.

Idaho, Arkansas and Iowa all enacted laws last week banning transgender students from using same-sex facilities according to their preferred gender, raising the total number of states with such bans to six.

[‘Forced outing’ bills make schools unsafe, transgender youth say]

The question over transgender students’ rights to use single-sex facilities has been playing out in federal courts for several years. In 2017, a federal appeals court ruled in favor of a transgender boy. In December of last year, a different federal appeals court ruled that a transgender boy was not entitled to use the boys’ bathroom. The judges in the majority of the 7-4 decision were all appointed by Republican presidents; the dissenters were all appointed by Democrats. Those rulings make the question poised for review by the U.S. Supreme Court.

While the Alaska Constitution’s privacy clause has been interpreted to be stronger than the one in the U.S. Constitution, Shortell said that doesn’t necessarily mean civil rights activists can rely on state courts to strike down laws like the one proposed by Dunleavy.

“The state constitution privacy clause has been interpreted … to do certain things, but that doesn’t mean that in the future it couldn’t be interpreted differently,” said Shortell.

When presenting his bill, Dunleavy insisted it was unlike those that had been introduced or adopted in other states, and would be a unique approach tailored to Alaska’s emphasis on local control, which allows district school boards to control school policies and curriculum.

“Let’s be clear, the state of Alaska is unique in its approach to just about everything, including people and our relationships with each other,” Dunleavy said at the time.

But every policy included in Dunleavy’s “parental rights” bill is similar to ones that have been introduced or implemented in several other states.

Alaska’s bill came at the heels of several other states this year proposing bills that could forcibly “out” students who may have shared a gender identity or sexual orientation in school that they have not shared with their parents or guardians.

Several states have passed or considered bills similar to the other provisions of Alaska’s measure, which would ban all classes related to gender and sexuality before third grade and require parental permission for a student to participate in such classes beginning in fourth grade.

The states that require written parental permission before a student can participate in classes discussing gender and sexuality, known as “opt-in” policies, are Arizona, Mississippi, Nevada, North Carolina, Texas and Utah, according to the Sexuality Information and Education Council of the United States, a nonprofit that advocates for comprehensive sexual education.

In Florida, a law called by critics the “don’t say gay” measure, was the first to ban all sexual education before fourth grade. Since then, several other states have proposed similar measures or broader limits that would ban all sexual education until a later grade.