ELKO, Nev. – It’s not very surprising that the American Civil Liberties Union is already threatening to sue the Elko school board over its decision last week to deny a transgender girl access to boys restrooms and locker rooms.

“The ACLU plans to contact the Elko school board on Monday to attempt to change the change the board’s decision, and could potentially decide to sue if the decision isn’t altered,” said a Sept. 26 article in the Elko Daily Free Press.

At least one board member, President Thad Ballard, said he would be more than happy to take the issue to court, if necessary.

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“They said they will investigate and might press charges, which is funny because the ACLU is not a law enforcement agency,” Ballard told EAGnews. “I expected it. I can’t speak for the board, but my personal position would be to stand our ground and make somebody bear the burden of proving we were wrong.”

The Elko school board made big news last week when it unanimously denied a request from the mother of a 13-year-old transgender girl to use boys restroom and locker room facilities.

Like most school boards around the nation that have faced similar issues, the Elko board checked with its attorney before making its decision.

But unlike many school board attorneys around the nation, the Elko board’s attorney, Richard Barrows, found legal precedent that he believes allowed the school district to deny the transgender girl access to boys facilities.

One of the cases cited by Barrows was Johnston vs. the University of Pittsburgh. In that case, the federal judge essentially said that a male is a male and a female is a female, based on biological evidence.

The following description of the legal decision, handed down in April, was published by the Pittsburgh Post-Gazette:

U.S. District Judge Kim Gibson, sitting in Johnstown, ruled on Tuesday that Seamus Johnston’s suit has no standing because, although he considers himself a man, he’s a woman by birth and didn’t undergo a sex change or otherwise take steps to officially change his gender.

Mr. Johnston, 25, was born a woman and applied to Pitt in 2009 as a woman. That fact, the judge said, is ‘fatal’ to his discrimination claim because the law recognizes distinctions between men and women based on birth sex.

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While that wasn’t the only legal decision cited by Barrows when he advised the Elko school board, he told EAGnews that he thinks “it was a very well reasoned decision by a federal court.”

Barrows contends that the U.S. Department of Education and groups like the ACLU have gone out of their way, with significant success, to convince schools that they have a legal responsibility to allow transgender kids to use restroom and shower facilities of their choice.

That assumption is based on a legal memo sent out by the DOE’s Office of Civil Rights in 2014, which stated that transgender rights are protected by Title IX of federal education anti-discrimination amendments.

“I think (the DOE memo) is a political statement by the Obama administration,” Barrows said. “Nothing in Title IX calls for co-educational facilities. Unfortunately (the memo) has the power of the U.S. Department of Education and its Office if Civil Rights behind it.

“Some school boards in some cities are so liberal they want to do this no matter what, but for the most part I think most school boards are just quietly going along because the transgender lobby has quietly put the message out there that this is federal law and they had better follow it, but I’m convinced that’s not the case.”

But the fact remains that the Elko board will be taking a risk if it stands its ground and provokes a lawsuit. As the ACLU pointed out in the newspaper article in the Elko Daily Free Press, there are also numerous court decisions where more liberal judges have ruled in favor of transgender plaintiffs.

““(The Elko board) did the right and legal thing,” Barrows said. “Now apparently it’s facing some sort of legal investigation and possible consequences. You never know in any case what a judge or jury is going to do.”