Obama Transgender Bathrooms Letter

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President Obama’s administration issued guidance to schools that directs schools to allow transgender students to use the bathroom of the gender with which they identify. Attorney Abby Louise Jensen, a trans woman and director of the Southern Arizona Gender Alliance, will discuss the legal aspects of the directive.

Ted Simons: Coming up next on "Arizona Horizon" -- County recorder Helen Purcell talks about preparations for tomorrow's special election.

Ted Simons: Also a look at the civil contempt of court charges thence Sheriff Joe Arpaio and a legal breakdown of school transgender guidelines. Those stories next on Arizona Horizon.

Video: "Arizona Horizon" is made possible by contributions from the friends of Arizona PBS, members of your PBS station. Thank you.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. The Maricopa County board of supervisors today tentatively adopted a nearly $4.5 billion budget. The largest portion goes to criminal justice and public safety. It includes a 4% property tax increase to offset long term costs mandated by the state and the spending plan includes 13.2 million to pay for a judgment and monitor in the racial profiling case against the sheriff's office. Board chairman Clint Hickman said this budget follows a conservative fiscal path that the board has embraced for many years.

Ted Simons: Tomorrow's statewide special election will be the first since long lines at Maricopa County polling places in march drew national scrutiny. Is the County ready for tomorrow's vote in we asked Maricopa County recorder Helen Purcell. How you doing?

Halen Purcell: I'm doing good.

Ted Simons: Are you ready?

Halen Purcell: Yes.

Ted Simons: How many polling places we got?

Halen Purcell: 116.

Ted Simons: that compares to last time --

Halen Purcell: almost twice as many as in march.

Ted Simons: 116. Why was that number chosen?

Halen Purcell: We were trying to double. We wanted to do 120 but came up with 116 because we had to look for place Tallahassee were larger than what our normal polling places are. We're still going to do that you can go anywhere and vote. So you have to have a larger place. You have to have more parking. So we can't use small places like schools or something because there isn't adequate facilities.

Ted Simons: as far as the locations, how are they chosen? Where are they?

Halen Purcell: we tried to look around some of the places that have the long lines and put more infill in those areas. Visually look at it but also see where the lines were and try to add more as we could.

Ted Simons: there seems to be confusion in march as to who made this decision. Who made the decision that these polling places will be where they are?

Halen Purcell: For they election?

Ted Simons: yes.

Halen Purcell: We still did that in my department. I'm responsible for that. I make the recommendations to the board of supervisors and they accept or not.

Ted Simons: And they accepted.

Halen Purcell: It was a 4-1 vote.

Ted Simons: who voted against it?

Halen Purcell: Stapler.

Ted Simons: As far as comparing to the most recent special election, what are you seeing?

Halen Purcell: if we go back to the last special election, in 2010, when we had the tax election, in addition to the tax election there were nine jurisdictions that he elections. We had about a 38% turnout. I think part of that was the city theirs were on the ballot as well. So far with looking at what we have in early ballots we have about 545,000 back in the house out of the million three that we sent out Ba 28%. I think we're probably looking at 30 or just a little above that as a turnout.

Ted Simons: so the County, is it better prepared if we do for whatever reason get long lines again?

Halen Purcell: We will certainly look at that. We have as we instructed our trouble shoot there's will be out there on election day if they see anything at all that we need to deal with they need to let us know immediately so we can get to that area, provide them with more space, try to find someplace else, or do whatever we can.

Ted Simons: How about more ballots? Some people said there weren't enough ballots.

Halen Purcell: some of the polling places they said they ran out, which they did run out of the paper ballot. There's always a touch screen in every polling place and they certainly could have used that. Those don't ever run out of ballots. We have done additional instruction to our workers to make sure they understand that. So they direct people to those ballots this. Is the ballot with only two issues, the same at every precinct.

Ted Simons: The march -- was a fiasco.

Halen Purcell: Yes. I have apologized.

Ted Simons: you said you apologized for what you call horrendous mistakes. What were those mistakes? What did you learn from this?

Halen Purcell: The mistake was we didn't take into consideration that the election was volatile. We had -- the weekend before that election you had most of the major candidates here. So that was kind of stirring everybody up. I think that was an additional thing. We had people that didn't realize when they got in line if they had an early ballot Pack net their hand they could go to the front of the line and drop that ballot in. Didn't have to stand in like. We had people who didn't realize they weren't qualified for that election. That was a big thing.

Ted Simons: That's a lot of communication issues there.

Halen Purcell: Yes. We tried as much as possible to get that out to the people. The only ones -- Republicans, Democrats and green party members. Independents could not vote under any circumstances. And we had some in the state who went on national television and said the independents could vote. So that at the last minute it's hard to take that back once said.

Ted Simons: It was an elected official.

Halen Purcell: Right.

Ted Simons: who is eligible to vote tomorrow?

Halen Purcell: everybody.

Ted Simons: where can they vote?

Halen Purcell: they can vote at any one of the 116 polling places in Maricopa County then throughout the other counties there are a number of counties that have vote centers.

Ted Simons: early ballots. Can they be dropped off at polling places?

Halen Purcell: You can drop them off at any polling place again. You can see what the closest three meteorology places are to you and drop them off at any of those places. You can, too, and we will emphasize this, a martial should be looking at those lines and if there are people in line who have some type of disability or who need special help that those people should be moved to front of the line as well.

Ted Simons: absentee ballots. How are they collected? How is that going to work tomorrow?

Halen Purcell: As I said, the early ballots can be dropped off at any polling place. That's your absentee ballot. We got a lot -- we received a pretty big number back with the 545,000. Most have already been processed and already been counted. So that the results that you see at 8:00, first results will be those early ballots.

Ted Simons: Is there added scrutiny, added oversight this time around more so than last time?

Halen Purcell: absolutely. We're going to be watching us, everybody else is going to be watching us.

Ted Simons: will it be similar to the oversight we had under the voting rights act?

Halen Purcell: I think we will see some of that. There's so many things, Ted, that we did under section 5 of the voting rights act that we still do. You have to have so many Hispanic speakers in your polling place workers. We run that against the what the Department of Justice gave us as Hispanic sir names so that we know how many we're supposed have out there. We know that our polling places have to be ADA compliant. All the requirements we had under section 5 we still do. That was not a bad thing. We will for our primarily and general election which will have 724 polling places I would say 94% of those have already been approved by the Justice Department when we were under their scrutiny.

Ted Simons: Is there a sense do you think maybe a little bit of overkill in they election considering what happened in march?

Halen Purcell: I think there's always that sense. If you have issues you're always going to try to go to the extreme.

Ted Simons: Okay. Last question. Why should voters be convinced, people watching now, be convinced that your office can handle this? We got a lawsuit involved here somewhere. We had the wrong title on the Spanish language for the 124 and 123. We have what happened in march. You know better than anyone the criticism is still there. Why should voters have confidence?

Halen Purcell: I think that we have taken what the voters said and tried to correct the problems we have seen. We have tried to make them -- make our website more user friendly. I want people to go on our website and look for a polling place. Make sure that they find those polling places. I want them to put their address in. We have done some things I think reach out to the voting public. Invited them to tell us is there something wrong? Is there something else you want to see. I think we have tried to answer those things.

Ted Simons: I think everyone is expressing good luck to you and the department tomorrow as we get this special election under way. Thank you for joining us.

Halen Purcell: Thank you, Ted.

Ted Simons: A federal judge has ruled Maricopa County Sheriff Joe Arpaio and three top aides are in civil contempt of federal court because they violated a court order to stop racial profiling. Here to talk about the ruling is local attorney Scott Halverson. Good to see you again. Thanks for joining us.

Scott Halverson: My pleasure.

Ted Simons: There was the decision a surprise?

Ted Simons: In one respect it wasn't. At least Sheriff Joe Arpaio and chief deputy Sheridan had already admitted that they committed civil contempt. So it wasn't necessarily a surprise. Three counts there, some aides involved as well, no surprise either?

Scott Halverson: Not so much. Perhaps detective Sosa I think was a bit of a surprise. He wasn't one that was at the top of the administration like Arpaio and sands and Sheridan were.

Ted Simons: let's talk about the three. One was -- this is basically you didn't do what I told you to do, bottom line. The first was didn't turn over video evidence. What was that about?

Scott Halverson: The video evidence, that was discovered afterwards, after the last hearing was held. It came to light there was video recordings, audio recordings of arrests made of individuals that weren't here legally. Then when the court found out about that it determined it should have been discovered, should have been turned over earlier but more importantly, judge snow said, look, keep this quiet. We don't want anything destroyed. Finds all this that you have and make it available to the plaintiffs. That was violated.

Ted Simons: that was the second one, chief deputy didn't quietly collect evidence after the trial as ordered. So basically you got two things right there. They just simply didn't do it? Was it negligence? Did they do a little bit of it --

Scott Halverson: One thing that made the judge particularly angry was the fact it wasn't done silently. The concern was people will destroy the evidence. They don't want to get in trouble so it will slip away. That's the reason for keeping it quiet. That wasn't done. It was communicated throughout some of the ranks there in the office and that was a problem. That upset the judge.

Ted Simons: Also the third one was enforcement continued after the judge's order.

Scott Halverson: that's really the crux of what was going on here. The judge issued his order December of 2011. The violations began or kept going I should say. I guess sheriff Arpaio would say it takes a long time to right the ship, to change things, but there were things that should have been done immediately and put in place. Not only that, it was clear that Sheriff Joe Arpaio was defiant publicly time and time again.

Ted Simons: those pre-conferences couldn't have helped his cause.

Scott Halverson: Not at all.

Ted Simons: The judge said Arpaio and his three aides multiple acts of misconduct, dishonesty and bad faith. That pretty much covers it, doesn't it?

Scott Halverson: It does. Really interesting, the judge particularly comments on the fact that there were misstatements under oath. That's going to raise a question as to whether there may be perjury charges down the road.

Ted Simons: let's talk about this. This is civil contempt of federal court. Do you see things here that could move over to the criminal side?

Scott Halverson: Yeah, I really do. Yeah. The judge repeats over and over again that these were intentional, intentional violations. That's the difference between civil and criminal contempt. Civil contempt I knew about the order, I made efforts to try to comply with it but obviously I fell short and should have done more. That's different than saying I adamantly defy the court order and I'm not going to comply with it.

Ted Simons: how did the sheriff's department think it would work by saying that these were not willful mistakes on one side, then having Arpaio in public saying I'm going to do what I'm going do.

Scott Halverson: it's tough to reconcile that. I don't know how he can other than there were feeble attempts I think. Chief deputy sands mentioned well that was just Sheriff Joe Arpaio spouting off to try to gain political clout, favor with voters before the election. He really didn't mean it. The judge said that's inexcusable. I didn't --

Ted Simons: I didn't mean tough to hold up in court. Why did this take so long, the entire process? I think folks have considered it lengthy at best.

Scott Halverson: One of the reasons is because this is really an interesting case where you have the federal government versus the state and local government. Whenever a federal court starts intervening in the affairs of the administration of a local sheriff's office, that follows the pattern of the school desegregation and voting rights act, things like that where the federal government says stop violating people's constitutional rights. We're going to impose our will on what are normally very local affairs.

Ted Simons: you don't see that very often. When you do it's pretty serious.

Scott Halverson: that's right. The judge took particular care to make sure everything is spelled out. Give everyone an opportunity to prepare.

Ted Simons: any penalties or sanctions coming out of this?

Scott Halverson: Civil contempt is a tough one. Two things, two remedies. First to stop future violations but that really has not been a focus here. The plaintiffs haven't suggested there's continuing violations to be deterred. So the focus is now let's remedy, compensate somehow the victims that have been harmed by these violations. That's tough where you have many of whom are not even named. They don't know who they are.

Ted Simons: interesting. You could also do a fix the problem kind of sanction or recommendation or move forward but that will be difficult because you've already done that and MCSO has basically shown itself not willing to go along with it.

Scott Halverson: I think you'll see a little more heavy handed intervention in the affairs of the policies and procedures and so forth to try to guard against this, but more importantly I think the judge I saying help me out here. Both parties suggest what appropriate remedies there are to compensate for the harms.

Ted Simons: Could Arpaio hit personally here?

Scott Halverson: I think it's certainly possible. There was an offer initially by Arpaio and Sheridan to try to settle this matter by paying personal funds. I think that's certainly something the judge will consider.

Ted Simons: Quickly here, timetable for sanctions if they are announced and a criminal proceeding if that is announced.

Scott Halverson: We have a May 31 hearing. Large part to try to work out the specifics of these remedies, we don't know. It certainly -- may already be referred to the U.S. attorney's office for possible criminal prosecution. I doubt if the U.S. attorney's office locally will take part. They oftentimes have to work with the local law enforcement in criminal cases so that may be deferred out to maybe the depth of justice. I think there will be an investigation and criminal charges down the line and possibly filed.

Ted Simons: interesting. Good stuff, Scott. Good to have you here. Thanks for joining us.

Scott Halverson: Thank you.

Ted Simons: The Obama administration's directive to public schools that they must allow transgendered students to use bathrooms consistent with their gender identity has made for a lot of talk and confusion. Here is Abby Louise Jensen, a trans woman and director of the southern Arizona gender alliance. Welcome.

Abby Louise Jensen: Thank you very much.

Ted Simons: what exactly did the Obama administration do?

Abby Louise Jensen: They informed schools across the country that under Title IX of the education amendments of 1972, which bars sex discrimination in education, federal funded education programs, that in their interpretation that the terms because of sex in that statute includes discrimination based on gender and gender identity. So when they are determining who should have access to rest rooms or locker rooms that the word sex in the statute is to be interpreted based on the person's gender identity. So a transgender person whose gender identity is different than their biological sex or what's on their birth certificate must be treated according to their gender identity, not other factors.

Ted Simons: let's define terms here. We hear about gender identity. What is gender identity and how exactly do you determine this, in this case I think universities as far as segregated housing is involved as well. What does it mean?

Abby Louise Jensen: everybody has a gender identity. Everybody has an internal sense of SELF as male or female or neither or both or something totally outside of the binary. Just as everyone has a sex orientation or everyone has a race. So the only difference is for trans people that we're expected to have a gender identity and gender expression how we present ourselves to the world that matches what was on our birth certificate, what's expected based on that. But for trans people that difference. That confuses people and makes some people uncomfortable.

Ted Simons: So a parent at a school hears about the edict from the White House and says, I'm a little concerned because I think some of these knucklehead boys are just going to announce I'm a girl and start hanging out in the girls' locker room and bathroom and that's not right. Do they have a point?

Abby Louise Jensen: Well, I think they have a point that no one wants that to happen. Under these guidelines what we are looking at is a student's consistent presentation of gender. So it's not a student who just decides, well, Monday I'm going to be a girl so I can go into the girls' locker room. It's a student who comes to the administration, says I'm a girl, I'm going to be living as a girl for the rest of my life. I wish to be treated as a girl. Most boys who just are playing a prank aren't going to spend their school year presenting as a girl.

Ted Simons: is parental concession, parental involvement involved at all in this gender identity issue? Can a student go to the principal's office or the councilor and say I'm feeling this way. I think I'm going this way. I don't want my mom or dad to know?

Abby Louise Jensen: that is permitted under the school guidelines that either the parents or student can identify as transgender to the administration and ask to be treated accordingly. Obviously there are concerns about privacy that are more difficult in a situation like that where the parents are not involved or supportive. But that's a matter for the schools to work out on an individual basis.

Ted Simons: what if the school says I don't want to work this out at all. I'm defying what the administration has sent as far as guidelines? What are the ramifications?

Abby Louise Jensen: well, the ultimate hammer, ultimate sanction under Title IX is a removal of federal funding to the school or the school district that is violating the guidelines. The office of civil rights of the Department of Education as well as the Department of Justice will come in, you can file a complaint, they will investigate. They will attempt to reconcile with the school district, find an accommodation that will satisfy everyone and bring the school district into compliance.

Ted Simons: has Arizona -- have we had issues at our schools involving this particular situation? Have we seen much of this in Arizona as far as a problem is concerned?

Abby Louise Jensen: Most definitely. Tucson unified school district added gender identity expression to their nondiscrimination policies two years ago because there was a seven-year-old trans boy who was getting harassed by staff for being trans. Most of the students were okay with it, but there was a particular hall monitor who thought this was not okay and took it upon herself to out this child to other students and to, you know, tell other parents about what a terrible thing this was. So yes, it's definitely a problem. It's an ongoing problem in every school.

Ted Simons: I know that there's a civil rights suit the U.S. is filing in North Carolina. Their opposition to this. What is next in this particular issue in general? What do we look forward to next?

Abby Louise Jensen: I think it's just a matter of implementation on school by school basis on how they are going to make this work. The important point of under all of these civil rights statutes including Title IX is the fact that someone is uncomfortable with someone else's race or sex or whatever being in the same space, does not give an exemption from being compliant with the statute. So it's a matter of educating other parents. When the trans child and parents are cooperative because the schools are required to keep the transgender status secret unless the student agrees.

Ted Simons: all right. Good to have you here. Thanks for joining us.

Abby Louise Jensen: thank you very much.

Ted Simons: That is it for now. I'm Ted Simons. Thanks for joining us. You have a great evening.

Video: "Arizona Horizon" is made possible by contributions from the friends of Arizona PBS. Members of your PBS station. Thank you.

Abby Louise Jensen: A Trans Woman and Director of the Southern Arizona Gender Alliance

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