An outdoor basketball hoop is seen in Bethel in October 2022. (Photo by Claire Stremple)
At the direction of the state’s governor-appointed board of education, the state’s high school sports association is poised to change its bylaws to exclude transgender girls from girls’ sports teams next week. But some state lawmakers and legal observers say the board is overstepping its authority.
ASAA Executive Director Billy Strickland said the current regulations have been working so far, but to keep schools enrolled in his association it will have to adopt the new rules.
He said that’s because of direction from the state’s board of education, which told ASAA and the Department of Education and Early Development to limit participation on girls’ teams based on the sex assigned to students at birth. Under a board resolution, the rules would also offer a sports division for students who “identify with either sex or gender.”
“If DEED makes this change in regulation, we really have no choice but to change our bylaws to such that schools get to give or maintain their membership,” Strickland said.
State regulations require any association that school districts join to follow state law.
Strickland said ASAA’s solvency hangs in the balance: If it doesn’t make the change, public schools won’t be able to join the association. Public schools account for more than 90% of dues-paying member schools.
The only legal authority cited by the board in its resolution to exclude trans girls from girls’ sports teams is a state regulation saying that school districts should administer interscholastic activities fairly and that districts may join the ASAA, which administers these activities.
DEED Commissioner Heidi Teshner confirmed that her department is working on regulation changes in response to the state school board’s resolution.
“This would be a regulation that districts and ASAA would have to follow,” Teshner said. “Within the next couple of months we will have a final draft.”
Commissioner Teshner said she wasn’t confident the final draft would be ready in time to be included in the next Board of Education meeting in June. There are no meetings currently scheduled beyond that.
Sen. Löki Tobin, D-Anchorage and chair of the Senate Education Committee, said the board and department are overstepping their authority.
“There is no state law that directs this,” Tobin said. “They are the regulatory body. They don’t create state policy. They simply enact the policy that the Legislature has adjudicated and then the governor has signed into law.”
Tobin said there are bills, such as House Bill 27, that could permit this action, but they have not yet passed out of committee.
“I find this as a very untenable workaround that has superseded the public process, that has clearly negated how we provide space for community members to give their input into how state policy is enacted,” she said.
Lon Garrison, the executive director of the Association of Alaska School Boards, voiced similar procedural concerns.
“I don’t know that such a regulation is supported in state statute yet,” he said. “We are recommending that ASAA not change the bylaws, until there is state statute or regulation that says they have to do that.”
He said he is concerned with the board of education and the Department of Education and Early Development’s push to change regulations without a new law or appropriate public process.
“By adopting the bylaws without regulatory or statutory requirement on the part of the state, ASAA could be setting themselves up for legal challenges that could be very damaging to the association,” he said.
But ASAA’s Strickland saw it the opposite way; he said ASAA would benefit from the change because the state, rather than his association, would be on the hook for any lawsuits.
“I’d rather spend that money serving member schools, putting on better events for students, really more towards what our true mission is,” he said. “The fact that this becomes regulatory, if it happens, is beneficial. Even if I don’t agree, or I do agree, with what’s being done.”
Ruth Botstein, the legal director of the American Civil Liberties Union of Alaska, said it’s hard to predict the particulars of any case that may come, but she didn’t doubt that one could. “The policy they’re considering is unconstitutional under state law,” she said.
The ASAA board meeting is scheduled for May 1, 2023. Strickland said more than 35 people have signed up to make a comment. The deadline to sign up is April 27.
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