Editorial: An Oakhurst bathroom becomes a battleground, but truth remains elusive
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Conservative activists are alleging a gender fluid boy assaulted a girl in an Oakhurst Elementary bathroom last year. School officials deny it.
Someone is telling the truth, and someone isn’t.
As a reporter, I want to tell you the truth about what did or did not happen at Oakhurst Elementary.
As a father, I wish this story did not have the potential to wreck the lives of two innocent children.
As a concerned citizen, I wonder if City Schools of Decatur is in over its head on this one.
Over the last week, I have interviewed school officials, child abuse experts and an attorney representing parents opposed to City Schools of Decatur’s policy on transgender students. I attempted to interview the state Division of Family and Children Services, which investigated the alleged incident at Oakhurst, but haven’t received a response. I filed an open records request with the Decatur Police Department and the school system for records pertaining to the investigation. Both requests were denied, the former on grounds that the case involves juveniles, the latter on grounds that it would jeopardize student privacy.
Ordinarily, I would agree with the conclusions of the attorneys who rejected my request. But this isn’t an ordinary situation.
The truth, whatever it may be, needs to come out. The stakes are high. What happens in this case could have national implications. At home, the case will continue to divide our community. The truth is the only way forward.
So far, the only account we have comes from the Alliance Defending Freedom — which the Southern Poverty Law Center deems a hate group — and Vernadette Broyles, the attorney representing parents opposed to the school system’s transgender policy.
If Alliance Defending Freedom rings any bells for you, it’s because that’s the group that successfully represented Jack Phillips, a baker from Colorado who didn’t want to make a cake for a same sex wedding. The Supreme Court ruled definitively in Phillips’ favor. ADF is a group with an agenda. It’s a well-funded organization that has won precedent setting cases. You may not agree with their opinions, and I certainly do not. But they do pose a serious threat not only to this school system, but to the rights of gay and transgender students everywhere.
James Radford, an attorney hired by CSD to help in its defense, said due to student privacy laws, the school district will have a hard time defending itself publicly.
“It puts us in a bad position,” Radford said. “This organization, they’re not bound by those same rules. They can say whatever they want, even if it is categorically untrue.”
Whether it is “categorically untrue” will have to be settled by Office for Civil Rights. All we have at this point are specific allegations from ADF and general denials from the school system.
ADF alleges that in November of last year a 5-year-old gender fluid boy sexually assaulted a 5-year-old girl in an Oakhurst Elementary girls’ bathroom. They say the alleged assault occurred because of the school system’s policy regarding transgender students.
Superintendent David Dude in 2016 wrote a memo outlining his response to guidance issued by the Obama administration about these students. That guidance was reversed by the Trump administration. In his 2016 memo, Dude told staff that he expects students to be addressed using their preferred gender identity and that students should be allowed access to facilities – like restrooms – and activities based on their preferred gender identity.
As of right now, Dude’s interpretation of the Obama administration’s guidance remains in effect. In fact, the School Board is considering making it a part of the board policy manual.
Broyles said the alleged bathroom incident came to ADF’s attention after one of the parents opposed to the school system’s transgender students policy, Gena Major, heard about it and reached out to the mother of the victim.
“They had never met before. They knew nothing about each other, but [the mother of the girl] was so relieved and was thrilled someone was reaching out to her,” Broyles said.
Please note that while other media outlets have named the mother of the girl, I have not because it could potentially identify an assault victim. Broyles requested that I name her mother and publish a video interview with her that ADF produced. I have declined. Broyles will not make the mom available for interviews and I would need her explicit consent before I would consider publishing the video. Even then, I’d be reluctant to do so.
I note, also, that I cannot find evidence to support ADF’s claim that the boy in question is gender fluid. Broyles insists that he is. District officials say otherwise. The police report on the incident – which I obtained before this blew up into a national story – identifies him as a boy.
On Wednesday, I interviewed Superintendent Dude about the case. He could not comment on the specifics but did provide some insight into what CSD’s policies are regarding bathrooms and transgender students.
I asked him to elaborate on what the school system meant when it said ADF’s allegation is “unfounded.”
“If were to say that something is unfounded, what that would mean is we had conducted an investigation and found that there isn’t merit to the allegations,” Dude said. “In general, that’s what we mean when we use the term unfounded. I don’t want to talk about the specifics of this case. In general, if I received a complaint and we investigated that complaint and we found that something had occurred, I would not describe that as an unfounded allegation.”
I interviewed expert witnesses who testify in child abuse cases and asked them their opinions about this case. Two of them were surprised by ADF’s allegation that two students were allowed to leave a Kindergarten class at the same time for a bathroom break without supervision.
According to the ADF complaint:
On November 14 or 15, 2017, five-year-old [Victim] was permitted to leave class to go to the restroom. While she was out of the room, the Assailant was also permitted to leave the classroom to go to the restroom, and followed [Victim] into the girls’ restroom. No one else was present.
Theodore Hariton, a doctor, said that allowing two children to go to the bathroom unsupervised at the same time sounded unusual to him. He asked, “Why wouldn’t [the teacher] let the girl come back before letting the boy go out? Two kids out at the same time wouldn’t make a lot of sense to me. ”
Roy Lubit, an expert certified in forensic psychiatry, child psychiatry and general psychiatry, questioned that scenario. “Since when are two kids allowed to go to the bathroom at the same time without a teacher watching?”
According to district spokesperson Courtney Burnett, someone is always watching when a kindergarten student leaves on a bathroom break. Many kindergarten classrooms have bathrooms in them, Burnett said. When a student leaves a classroom to go to the bathroom, someone is keeping an eye on the child going to and from the bathroom.
“There’s adult supervision when a child asks to go to the restroom,” she said.
Dude said, “The whereabouts of the child would be known.”
If the school employees were following standard practice in this case, it would seemingly contradict ADF’s complaint.
ADF’s other central claim, that the child was allowed into the bathroom due to his gender fluid status, appears out of line with how CSD handles cases involving transgender students. Dude explained that gender identity in the school system isn’t considered multiple choice. Students can’t wake up one day and decide they’re a girl and wake up the next day and decide they’re a boy. Accommodations for transgender students aren’t made up on the spur of the moment, he said.
He explained how it works in practice.
“A child who desires to use a restroom that aligns with their gender identity, and if that gender identity does not match the sex assigned to them at birth, shares that need with a trusted adult in the building, often a counselor,” Dude said. “Through discussions with the student and often the student’s parents, if the school employees feel this is a sincerely held belief of the child, then an accommodation can be provided for a child to use a different restroom than aligns with their sex at birth. … This is not a decision made in the moment, and it is not a decision that changes back and forth. The child has to have a sincerely held belief that this is their gender identity and a sincerely held belief would not change frequently.”
Dude added that if a boy decided to go to the girl’s restroom, that boy would not be allowed to enter.
“That would be stopped, and dealt with through our student code of conduct,” he said.
The policy works both ways, he said. If a parent is concerned about their child potentially sharing a bathroom with a transgender child, they are offered the choice to use private facilities at the school.
ADF claims that the school system never notified parents a gender fluid child could potentially be allowed into a restroom. But, as I mentioned earlier, there is a sharp disagreement about whether the child is gender fluid. The ADF complaint alleges that the school denied the assault happened, which is true.
Specifically, a letter from the principal to parents said that, “Although an incident was alleged, a thorough investigation involving Oakhurst administrators, central office staff, law enforcement, and social service agencies led us to confidently determine that the allegation was unfounded.”
What about ADF’s claim that the state Division of Family and Children Services assumed the mother was the alleged assailant? That one is hard to verify. DFCS isn’t talking right now. Dude says he doesn’t know if DFCS talked to both families.
Broyles said she had “no reason to believe” that DFCS interviewed the family of the accused.
“As far as we know, I have no reason to believe DFCS did an investigation beyond mom, which of course showed nothing,” Broyles said.
The complaint alleges that DFCS interviewed the girl separately from her mom and interviewed her mom’s family and friends.
Kimberly Basinger, a nurse and police officer who serves as an expert witness in child abuse cases, said it didn’t surprise her that an agency like DFCS interviewed the girl’s family and that the children were interviewed separately. It would be standard in cases like this, she said.
“They interview the child,” Basinger said. “They interview anyone who has care, custody and control of that child.”
She said if a child is interviewed with a parent in a room, it could influence how the child responds to questions. Even a non-verbal cue from a parent could affect how a child answers.
“We never interview the child in front of the caregiver for those different types of reasons,” Basinger said. “That is typical in investigations, to interview the child separate from the caregivers.”
All experts I spoke to were skeptical that the transgender policy or the child’s alleged gender fluid status had any bearing on this case. Most were surprised to hear about a 5-year-old being accused of a crime like the one described in the ADF complaint.
“This particular case may not have occurred, but if someone is going to assault others, if he had to go to the boy’s room there’s a very good chance he would’ve assaulted a boy,” Lubit said.
Broyles indicated it’s CSD’s policy, not the child’s gender identity, that is the primary concern here. The policy is what allowed this alleged incident to happen, she says.
“[My client] and I feel this policy put this child in harm’s way,” she said.
The ideal resolution, Broyles said, would be for CSD to admit fault and to “reassess” its transgender students policy. She said it was something that school officials ignored when Major and other parents started speaking out against the policy last year.
“We tried to warn them exactly of our concerns about this,” Broyles said. “They would not hear of it. We are saddened, truly, it’s come to this.”
I’m skeptical that ADF and Broyles are as saddened that this situation has become public knowledge. If their concern were for the children involved, they never would’ve dragged them into it in the first place.
That’s what burns me up about this situation. These kids are being weaponized for a political purpose. ADF champions itself as an organization “fighting for moral justice,” but I cannot fathom anything more immoral than what they have done. If ADF and Broyles wanted to file a complaint about the transgender policy itself, I think there’s room for an honest debate there. Parents say they didn’t have enough notification of the policy when Dude implemented it and I think that’s a fair point. But making a federal case, literally, out of an incident between two 5-year-olds in a school bathroom isn’t just crossing a line. It’s nuking the line from orbit.
To the parents who are opposed to this policy, I sincerely ask as one parent to another: is CSD’s transgender policy so offensive to you that you’re willing to exploit two innocent children to make your point?
Unfortunately for the kids in this case, there’s no going back. What’s done is done. We all have to let the chips fall where they may and hope that the truth comes out. We have to hope that these kids do not suffer lifelong consequences from this experience.
Despite Broyles’ claim that this situation was unavoidable, it did not have to come to this. Broyles, ADF and the parents opposed to the transgender policy put their own prejudices ahead of the well-being of two children. And now we will all have to pay for it, particularly the taxpayers footing the legal bill to fight this case.
Radford, City Schools of Decatur’s outside counsel, is optimistic the federal investigation will vindicate the school system. He welcomes it, but he regrets that two children have become fodder in a political dispute.
“I wish this organization had picked a different way to fight this battle,” Radford said. “While I disagree with their perspective, they certainly have a right to advocate for their position, but they’ve chosen as proxies for this battle little children. Ethically as educators and legally, the School District shouldn’t be out there in the news putting out information about what is happening with little children at school, especially as it relates to this allegation. Personally, it’s sad to me to see children being used in this way.”
It makes me sad, too.
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