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Breakthrough Reached On Trans Athletes

By Emily Hayes
Published in the New Haven Independent on September 23, 2020

New Haven Public Schools and the U.S. Department of Education’s Office for Civil Rights have come to a tentative agreement that would allow transgender athletes to continue to play on teams of their choice — without the city losing millions of federal dollars.

On Tuesday afternoon, New Haven Public Schools received an email from the feds that the office will release a $3 million grant budgeted for the district’s magnet schools this year. The feds had previously vowed to withhold the money from New Haven as punishment for participating in a state athletic league that allows transgender students to play.

A nationally watched showdown ensued. This week it appeared to be ending, pending a needed final sign-off from top federal education officials.

“Based in part on the Title IX assurance you provided earlier today, our Acting Assistant Secretary for Civil Rights has signed a document certifying that New Haven ‘will meet’ its MSAP non-discrimination assurances”  in the context of New Haven’s application for a year 4 grant award,” Richard Foster, an attorney with the U.S. Department of Education’s Office of Civil Rights, wrote in an email sent Tuesday at 4:29 p.m. to New Haven Board of Ed officials.

“We have conveyed that certifying document to the programmatic MSAP staff in OESE, which means OESE can go forward with completing and providing New Haven’s Grant Award Notification (GAN).  OESE staff fully understands the urgency here and will do so as soon as possible.

“Thanks again for everyone’s hard work and thoughtfulness and flexibility during our discussions with you and New Haven representatives during recent weeks.”

“Thank you again for finding a way to resolve the conflict regarding the Title IX assurance. We are grateful, on behalf of the students in New Haven Public Schools, that we were able to resolve this amicably and without resorting to litigation,” wrote Michelle Laubin, the Berchem Moses PC lawyer representing the New Haven school district.

“Please send us a copy of the Grant Award Notification (GAN) as soon as possible so that we know that there is no need to pursue this matter further.  It is my hope that we would be able to receive the GAN by the end of the week, given how quickly we are approaching the end of the fiscal year. Please confirm, or refer me to the appropriate person at OESE for this information.”

The grant still has to go through another step within the Department of Education for final approval, so NHPS staff Tuesday declined to comment on what happened or offer more details. They said they expect to have more information by the end of the week.

“I am optimistic that we are close to resolving this dispute,” said Mayor Justin Elicker. “It’s vital that the decision is made quickly because the financial impact to New Haven Public Schools is significant. We deserve to have a predictable budget.”

The federal office had threatened to cut off the grant if New Haven did not agree to ban transgender athletes from the teams of their choice. The department’s position was that allowing trans female athletes to play on female sports teams discriminates against athletes who were born as girls.

The New Haven Board of Education vowed to fight this ban, with a lawsuit if necessary. Board members called the Trump administration’s decision to pit the magnet school grant against trans athletes “extortion” and “an attempt to fire up a base for the election.”

On Monday, the board learned that negotiations were going well. They also learned that a year of fighting the federal government in court would cost the district up to $99,000.

Tuesday’s email exchange shows that New Haven feels a lawsuit is no longer necessary.

“Thanks to Michele Bonanno and Attorney Laubin for their relentless work on the behalf of New Haven Public Schools,” schools Superintendent Iline Tracey wrote in a separate group email message celebrating the “good news.”

Laubin cautioned in a phone interview that the Department of Education has not changed its policy on trans athletes. It has just agreed to separate the issue back out from the magnet school grant. When the department said in late August that it would enforce what it sees as the rights of biologically female athletes, it threatened to revoke grants and pursue legal action.

“I don’t think that this represents a retreat from the department’s position on transgender athletes, because they have not withdrawn their policy position represented in the Aug. 31 letter,” Laubin explained.