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Complaint says transgender bathroom policy led to kindergarten assault

A Decatur parent is alleging her daughter was sexually assaulted by another child in an elementary school bathroom last fall, in a federal civil rights complaint that comes amid national turmoil over both sexual assault and gender identity.

The complaint says the girl, 5, was assaulted in a girls’ bathroom by a “gender fluid” boy last November. Both returned to their classroom and said nothing about it to the teacher, the complaint says.

Decatur schools implemented a policy allowing students to use facilities consistent with their gender identity after a controversial 2016 advisory from the administration of President Barack Obama, which said schools had to do so. President Donald Trump’s administration walked back that advisory after his election. But Decatur schools left its policy in place, though it continued to draw questions and concern from some parents.

The complaint, filed by Norcross attorney Vernadette Broyles under the federal Title IX law, says the City Schools of Decatur created a hostile environment for girls by “eliminating their expectation of privacy from the opposite sex.” It says the girl, who was a kindergartner at Oakhurst Elementary School, was pushed against a wall and her genitals were forcibly touched by a fellow student who had followed her to the bathroom.

A school district spokeswoman issued a brief statement saying the district was “aware of the unfounded allegations” and “we fully disagree with their characterization of the situation.”

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The statement said there would be no further comment because it was a pending legal matter.

The release of the complaint comes after a tumultuous U.S. Senate hearing involving allegations of sexual assault against Brett Kavanaugh, President Donald Trump’s pick for the Supreme Court. The hearing triggered a national controversy over sexual assault and victim credibility that, Broyles acknowledged, is one reason they went public with the case now. The federal government indicated last month that it would investigate.

Broyles said in an interview Wednesday that the Decatur school board has failed to adopt a clear policy around gender and privacy, relying instead on non-specific instructions from Superintendent David Dude. 

Dude has written that a child assigned the sex of male at birth who identifies as female should be treated the same as any other female student. The child should be allowed to use the female restroom and locker room, should be addressed with female pronouns, should be allowed to try out for “female” sports and should be allowed to room with females on field trips.

The instructions in the superintendent’s blog did not give specifics about how that was to be implemented.

Broyles also accused the school district of reacting inappropriately to her client’s allegation. The morning after the incident, Broyles said, the girl’s mom complained to the school. A school resource officer took a police report, and the case was referred to the Georgia Division of Family and Children Services. All of that was appropriate, she said, but her complaint alleges the school apparently accused the mother, because DFCS investigated her, interviewing her and her children.

“The school was attempting to deflect responsibility from itself,” Broyles said. Her complaint says DFCS found no grounds against the mother. (The Atlanta Journal-Constitution is not identifying the mother to protect the privacy of the alleged victim.)

Then, Decatur refused to change the bathroom rules at the school, allowing the alleged child assailant continued access to the same bathroom as the girl. The district also refused to separate the children. Several weeks later the mother transferred her daughter to another elementary school in the district.

Broyles filed the complaint with the U.S. Department of Education’s Office for Civil Rights in May. On Sept. 14, the agency informed her by letter that it was opening an investigation under Title IX, which prohibits discrimination on the basis of sex. The agency has jurisdiction because Decatur schools get federal funding.

U.S. Education Secretary Betsy DeVos happened to be in Atlanta Wednesday to visit Georgia Tech. She told reporters she was unaware of the Decatur case, but said it’s her agency’s duty to investigate such complaints.

The federal agency’s decision was revealed Wednesday by the Alliance Defending Freedom, a non-profit legal organization based in Scottsdale, Ariz., that advocates for “the right of people to freely live out their faith” and trains attorneys to “defend and reclaim religious liberty, the sanctity of life, and marriage and family.”

Christiana Holcomb, legal counsel for the Alliance, said the organization is involved in other school bathroom-related cases, including one in Pennsylvania. She called the alleged Decatur assault “absolutely tragic” and said the district “abysmally failed.” She hopes the federal agency will take disciplinary action against Decatur.

“And then too, we would be hopeful that other school districts will take notice,” Holcomb said. “We are trying to ensure that every student is protected.”

A month before the alleged incident, Broyles represented several parents who complained at a Decatur school board meeting about the district’s bathroom policies. Broyles said those parents subsequently connected her with the mother who alleges her daughter was assaulted. 

The Rev. Erin Swenson, who provides diversity and transgender inclusion training, said the school system has done a good job of supporting transgender students. 

Swenson, who gained national attention when she retained her ordination in the Presbyterian Church (U.S.A.) after she transitioned from male to female, spoke last year in Decatur about the transgender controversy. On Wednesday, she said Decatur wants to “normalize” the situation for transgender kids.

“I would expect that the school district is highly competent to take care of that situation,” she said.

Broyles has not filed a lawsuit, but didn’t rule out the possibility.

Staff writers Vanessa McCray and Eric Stirgus contributed to this article

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