The Derby Recreation Commission has refused to respond to questions about its transgender locker room policy, even after a used condom was found inside the women’s shower.
On February 8, 2023, the Sentinel asked the entire DRC board of directors, “How does your policy protect women’s rights, whether they be Constitutional, Title IX or simply common decency, particularly in light of the fact a used condom (see attached photo) was found in the women’s shower?”
The photo is not part of this story, but it was shared with each board member.
A week later, they have not answered.
The background
In late January, the Derby Informer reported that a supervisor told employees of the DRC they were not allowed to ask transgender individuals how long they had been transitioning or for any identification regarding new facility usage directives.
“They were told they just have to ‘let it slide,'” according to the initial report by the Informer.
The Informer reported a source within the DRC, who asked to remain anonymous, said “they were not to tell a transgender person they needed to use the men’s locker room if they were a male; that would be considered harassment. If someone asks for a locker room, staff were instructed to show them all three. Besides men’s and women’s locker rooms, there is also a family locker room area at the DRC.”
The Informer’s source also said they were told: “there was a senate law that passed, and they could not discriminate against transgender people.”
But no such law has been passed in Kansas or the U.S. Congress.
USA Swimming encourages the practice in place at the Derby Recreation Commission, but recreation commissions are under no legal obligation to allow biological males in women’s facilities.
Derby Rec board punts on the issue after controversy erupts
While there is, apparently, a private family locker room available, a further story by the Informer on Jan. 31 notes the board issued a statement stating it had “consulted legal counsel” and was told “per the 2020 Supreme Court case Bostock vs. Clayton, that homosexual and transgender employees are protected against discrimination on the basis of sex by Title VII of the 1964 Civil Rights Act. Federal guidelines from the Occupational Safety and Health Administration (OSHA) also state that transgender employees should be free to use the locker room of their gender identification.”
However, Bostock applies only to employment discrimination based on sexual orientation or gender identity, and in the opinion, Justice Neil Gorsuch specifically stated, “.. under Title VII itself, [employers] say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
The board, however, apparently is unconcerned about what Bostock actually says or the concerns patrons might have.
“The DRC developed and provided guidance to staff to help them assist customers in the least obtrusive manner possible so our transgender patrons have access to the same accommodations as all other customers,” the statement read according to the Informer. “Our staff will not investigate an individual’s birth gender identity,” the statement read. “The board is sensitive to the feelings of our staff and customers and believes it can provide a safe environment within the demands of existing law.”
In a related matter, the 11th Circuit Court of Appeals recently ruled that Title IX does not cover gender identity. The court also held that Title IX allows schools to provide separate bathrooms on the basis of biological sex.
