District 49 board advances draft bathroom policy after hours of public comment and legal caution

The El Paso County Colorado School District 49 Board of Education on Sept. 11 heard extended public comment and a lengthy board debate over proposed policy JBAA, which would govern student access to sex-segregated facilities in district schools. Members agreed to send a revised draft — with an added clarifying clause — to the next meeting for a final vote.

The meeting’s public-comment period featured speakers on both sides of the issue. Mistia Fallon urged the board to remove or narrow the phrase 'or other reasonable option' from the policy’s accommodations clause, calling it 'subjective, undefined, and unclear' and saying principals could interpret it inconsistently. Jacqueline Adair said she did "not believe teen children or teenagers should transition" but supported a "safe private bathroom" for transitioning students. Vixeria Aratum told the board, 'Vote no on JBAA or risk pushing kids to suicide,' citing mental-health research; Devin Chetron, a transgender student, called the draft discriminatory, warned it may violate state law and the Americans with Disabilities Act for disabled students, and asked for an audit of board connections to outside organizations.

Board members framed the policy debate as a clash of rights and legal authorities. Director Schmidt and other directors emphasized the district’s existing practice of accommodating students through individualized plans and single-stall facilities; Schmidt said a single-use, non-gendered restroom is the most respectful solution. Director Laveer Wright advised caution on adopting a policy that might contravene Colorado law and trigger uninsured litigation costs, saying a district that 'openly defied state law' could lose insurance coverage. Director Hile and others urged practical flexibility for administrators when single-stall options are not available at off-campus events or facilities.

District counsel Brad Miller told the board the draft language could be clarified by adding a prefatory phrase to the accommodations bullet: 'Without compromising the intent of this policy, if a student or parent guardian requests an alternative, the school shall provide access to a single-user facility or other reasonable option without requiring disclosure of personal information beyond the request itself.' Miller said that clarification would constrain 'other reasonable option' to reasonable, privacy‑protecting alternatives and reduce ambiguity for school leaders.

Directors also debated legal risk. Several cited state statute protections for gender identity and expression and recent federal and appellate decisions that bear on Title IX interpretation. Some directors said a policy that overtly conflicts with state anti-discrimination law could result in immediate lawsuits and uninsured costs; others argued the board must take a moral stand even if litigation risk follows.

The board did not adopt JBAA at the Sept. 11 meeting. Directors expressed consensus to move the draft forward for a redline that incorporates the clarifying language and to return with a final version and vote at a subsequent meeting. Counsel advised that if the board settles final redlines at the next meeting, the board may proceed to take a vote then.

Next steps: staff and counsel will prepare the redlined policy language requested by directors and present it for final consideration at the next board meeting.