WIAA%20Amendment.pdf

Parent document: School Board Meeting_ Study Session-03-27-2025.pdf

Text

PORTER FOSTER RORICK



Nick Perigo
March 25, 2025
Page 2

First, the aspect of Draft Resolution 24.25.7 supporting Amendment #7 could cause an
attenuated increase of liability to the District, but would not be direct grounds for liability. It
would be evidence that a plaintiff could use in support of the argument that the District was
“deliberately indifferent” to discrimination suffered by the plaintiff in District schools in the
event that a lawsuit is brought for a more direct violation of antidiscrimination laws.

For example, if a transgender student suffers repeated bullying related to their gender
identity, they may sue the District alleging that the District did not take reasonable steps to end
the discriminatory harassment. See RCW 28A.640.040, RCW 28A.642.040 (creating private right
of action for damages for violations of state nondiscrimination laws by school districts). In that
event, the student could use the Resolution as evidence to prove that the District created a hostile
environment for transgender students, or was deliberately indifferent toward the student’s
discriminatory harassment, because the Board was promoting an anti-transgender environment in
conflict with laws prohibiting discrimination based on gender identity. This could increase the
likelihood of the District being held liable for damages in the hypothetical lawsuit described
above.

Second, Draft Resolution 24.25.7’s “strong encouragement” of its employees to vote in
favor of Amendment #7 could conceivably lead to liability for the District if an employee brings a
claim against the District on the grounds that they were pressured to take action contrary to
nondiscrimination laws, or if they do not vote as the Board desires and later face some adverse
employment action they could allege the adverse action was retaliation for not voting to violate
nondiscrimination laws. This risk could be reduced by amending Draft Resolution 24.25.7 as
follows: “Mount Baker School District voting members of WIAA are strongly encouraged, but
not required, to vote in support of 2025 WIAA Proposed Amendments #7.”

Draft Resolution 24.25.8

The potential risks to the District from Draft Resolution 24.25.8 depend on the meaning
of Amendment #8. But there appears to have been an oversight or error in the drafting of
Amendment #8, such that the amendment does not actually say what most may assume it says.

Amendment #8, available at this link, would create three divisions: boys, girls, and open.
From what I have heard, the general understanding of this amendment is that participation in the
boys and girls divisions would be determined based on students’ sex assigned at birth, while
transgender students would participate in the open division (regardless of their gender identity or
sex assigned at birth).

But the actual plain language of Amendment #8 does not reflect that general
understanding of the amendment. Instead, the plain language of Amendment #8 would retain the
current language that students participate “consistent with their gender identity,” and adds one
sentence stating that there will be boys, girls, and open divisions. Amendment #8 does not
actually state that participation will be based on a student’s sex assigned at birth, so students



Nick Perigo
March 25, 2025
Page 3

would still participate based on their gender identity, just as they do today. Amendment #8 does
not include a description of who would participate in the open division.

However, each amendment has a “Pros” and “Cons” section listed below it, like in a
voters’ pamphlet. The first paragraph of the “Pros” section for Amendment #8 has what appears
to be the proposers’ actual intended amendment, containing language that would implement the
general understanding of Amendment #8 described above:

Pros: All students have the opportunity to participate in WIAA athletics and/or activities in a
manner that is equitable, and fair, while preventing harm to student athletes in the form of diminishing
achievement and discrimination on the basis of sex, gender identity, or expression. Athletic programs
shall be offered separately for boys, girls and open as outlined in Appendix 2. Athletes will participate in
programs consistent with their sex assigned at birth (Assigned Sex as defined in Appendix 6) with
exceptions as follows. Athletes wishing to compete according to their gender identity, if differing from their

Assigned Sex, shall compete in the open division. Further, athletes in the process of transition that have
undertaken medical changes (Appendix 6) are eligible to participate in the open division. School personnel

responsible for student eligibility will work collaboratively with the student-athlete to determine eligibility
for the boys, girls, and open divisions. Once the student has been granted eligibility to participate in the
open division consistent with their gender identity and/or transition status, the eligibility is granted for
the duration of the student’s participation and does not need to be renewed every sports season or school
year. The WIAA staff is willing to collaborate with any member school seeking assistance regarding
gender equity. For additional information on Gender Identity, refer to Appendix 6.

(italics in original; underline added for emphasis). Thus, even if Amendment #8 passes
and was added to the WIAA Handbook, students would continue to participate based on their
gender identity.

Because the plain language of Amendment #8 is consistent with state nondiscrimination
laws, I see no liability concerns to the District from supporting Amendment #8.

On the other hand, if Amendment #8 were changed at this late juncture to reflect the
paragraph currently appearing in the “Pros” section or interpreted that way by WIAA—either of
which would be highly speculative—I see the same risks of liability described above for Draft
Resolution 24.25.7.

Draft Resolutions 24.25.9 and 24.25.10

I have no concerns regarding Draft Resolutions 24.25.9 or 24.25.10. They do not pose any
legal risk to the District.