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Denver Public Schools had 10 days to agree to revert the all-gender restrooms at East High School back to single-sex ones or face consequences from the Trump administration. Instead, the school district on Sunday asked the U.S. Department of Education’s Office for Civil Rights for 90 days to negotiate another resolution.
“DPS is committed to effectively implementing the Title IX regulation according to the law, and there is clearly much to discuss in regard to this matter,” DPS Senior Counsel Kristin Bailey wrote in a letter addressed to Erica Austin, the acting regional director for the federal Office for Civil Rights in Denver. “Consequently, we are not at an impasse.”
The Office for Civil Rights recently found that an all-gender restroom at Denver’s East High School violates Title IX, which prohibits sex-based discrimination. OCR said DPS would face “imminent enforcement actions” if it didn’t get rid of its all-gender restrooms and adopt “biology-based” definitions of “male” and “female,” among other actions.
The U.S. Department of Education did not respond Monday to a request for comment about DPS asking for a 90-day negotiation period.
President Donald Trump has made targeting transgender rights a key part of his second term. The investigation into DPS’ all-gender restroom was the first launched by OCR after his inauguration in January.
OCR concluded on Aug. 28 that the conversion last year of a girls’ restroom on the second floor of East High to an all-gender restroom meant that only girls “bore the burden of seeking an exclusive restroom elsewhere in the building or limiting their restroom use,” according to a letter from Austin to Denver Superintendent Alex Marrero.
Because boys still had a single-sex restroom on the second floor, OCR found that girls at East High were being treated differently, in violation of Title IX.
In an attempt to address any disparity, DPS converted a second-floor boys’ restroom to an all-gender restroom over the summer. But OCR called the move a “misguided effort” that ended DPS’ “different treatment” of girls but did not fix its Title IX violation.
Marrero criticized the Trump administration for pushing “an anti-trans agenda through the weaponization of Title IX.” In a joint letter, more than 40 Colorado and Denver elected officials called OCR’s investigation “an ideologically driven attack.”
In a Sept. 7 letter to OCR, DPS accused the federal agency of being unwilling to communicate about the investigation. “Due to your office’s intransigence,” the communication between DPS and OCR was limited to one phone call in February, an email in March, and another phone call in June, wrote Bailey, DPS’ senior legal counsel.
On those phone calls, OCR staff were vague and noncommittal, saying they would have to run ideas “up the flagpole,” and that OCR’s position “depends on what the issue is,” Bailey wrote.
Bailey also took issue with OCR’s finding that the all-gender restrooms created a hostile environment at East High, an issue she said was a “new and different allegation.”
“If OCR can provide a more precise articulation, based in fact, of the reasons it purports to have sufficient evidence to support a legal conclusion that the bathroom created a hostile environment, it may prompt an appropriate resolution to this matter,” Bailey wrote.
OCR’s Aug. 28 letter said that East High received “many complaints from students and their families” about the all-gender restroom, including that boys were leering at girls in the restroom and, in one instance, pounding on the door of a stall while a girl was using the toilet.
But DPS said OCR’s findings were “based solely on a handful of negative emails,” and that the federal agency ignored the positive emails that DPS received. At a school of about 2,400 students, OCR’s conclusions were based on three emails, “none of which provide information from a direct witness to any concerning conduct,” Bailey wrote.
“All supportive comments seem to have been disregarded,” she wrote.
OCR said that if DPS didn’t agree to its proposed resolution within 10 days, the agency would issue “a letter of impasse that confirms the District’s refusal to voluntarily come into compliance with Title IX.” Ten days after that, OCR said it would issue a letter of impending enforcement action. It did not say what that action would be.
Five Virginia school districts are now receiving their federal education funding by reimbursement only — meaning the districts must pay those costs up front — because OCR found that their restroom and locker room policies for transgender students violated Title IX.
Nearly 7% of Denver Public Schools’ budget last year, or about $96 million, was federal funding, according to district budget documents.
DPS had not yet received a letter of impasse from OCR as of Monday morning, according to a district spokesperson.
Melanie Asmar is the bureau chief for Chalkbeat Colorado. Contact Melanie at masmar@chalkbeat.org.
