Recently, a set of policy guidance for local school districts issued by the South Carolina School Board Association (SCSBA) has been circulating online and drawing attention from concerned parents, school board trustees, and state leaders. As some of this guidance pertains to students’ privacy and safety and deals with issues covered by state law or budget proviso, the public deserves a clear understanding of these matters.
Below are excerpts of SCSBA’s guidance on several issues under a section entitled “Student Gender and Orientation” (bold added for visibility):
“Restrooms
A student who has been identified as transgender under these guidelines should be permitted to use the restrooms assigned to the gender which the student consistently asserts at school. A transgender student who expresses a need for privacy will be provided with reasonable alternative facilities or accommodations, such as using a separate stall or a staff facility; however, a student will not be required to use a separate non-communal facility over his/her objection.
Locker rooms
The use of locker rooms requires schools to consider a number of factors, including, but not limited to, the safety and comfort of students; the transgender student’s preference; student privacy; the ages of students; and available facilities. As a general rule, transgender students will be permitted to use the locker room assigned to the gender which the student consistently asserts at school. A transgender student will not be required to use a locker room that conflicts with the gender identity consistently asserted at school. A transgender student who expresses a need for privacy will be provided with reasonable alternative facilities or accommodations, such as using a separate stall, a staff facility, or separate schedule.
Other gender-segregated facilities or activities
As a general rule, in any other facilities or activities when students may be separated by gender, transgender students may participate in accordance with the gender identity consistently asserted at school.”
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We should note that SCSBA’s guidance includes separate, optional language for districts elsewhere in this section that is ostensibly intended to facilitate compliance with existing state law and budget mandates (more on this below). Additionally, districts are not required to follow this guidance or any SCSBA recommendations. Individual school boards are responsible for adopting their own policies.
However, there is concern that this guidance may create confusion among school board members, as state law imposes clear limitations on district policies regarding these matters and provides consequences for districts that are out of compliance. A growing number of parents and state leaders, including U.S. Representative Ralph Norman, are also voicing their objections.
Applicable state law and budget mandates
Proviso 1.120 (Student Physical Privacy) of the FY2024-25 South Carolina budget states that: “Multi-occupancy public school restrooms and changing facilities shall be designated for use only by members of one sex.Any public school restrooms and changing facilities that are designated for one sex shall be used only by members of that sex …”
Under the budget, districts are expressly forbidden from allowing schools in their jurisdiction to operate a restroom or changing facility in a manner that violates this provision. Should they opt to do so, a district will be penalized 25% of their state funding used for district operations.
Furthermore, the South Carolina “Save Women’s Sports Act,” passed in 2022, requires that eligibility for public school-sponsored sports teams be determined by a student’s biological sex, covering athletics from elementary school through college. Schools are still allowed to offer co-ed teams that include both boys and girls. If a girls’ team is not available for a particular sport at a given school, female students may try out for the boys’ team. However, male students are prohibited from participating on teams specifically designated for girls.
If a student is deprived of an athletic opportunity or suffers any direct or indirect harm resulting from a violation of this law, they can bring a legal cause of action against their school.
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Highlighting SCSBA’s guidance, S.C. Attorney General Alan Wilson shared on social media Friday that his office has received “multiple reports of conflicting guidance” in reference to the Biden Administration’s proposed Title IX rule change, which a federal appeals court temporarily blocked from taking effect in South Carolina.
The rule seeks to require schools receiving federal funds “to accommodate students’ and teachers’ ‘gender identity,’” according to a statement from his office. In practice, this could mean students of the opposite sex sharing restrooms and locker rooms, raising privacy and safety concerns from both parents and students.
“We will provide any new updates as soon as they are available,” Wilson added.