The Kearsarge Regional School District has yet to face any legal consequences for declining to comply with a new state law barring transgender girls from participating on girls’ sports teams, according to Superintendent John Fortney’s response to a public records request.

The School Board’s decision, made shortly after the controversial law went into effect in August, opened the school district up to legal jeopardy.  The controversial law allows those who have experienced “direct or indirect harm” as a result of known noncompliance to sue the school district for damages.

So far, no one has done so, Fortney indicated in response to a series of Right-to-Know requests last week. 

In addition, neither the Department of Education nor the Attorney General’s Office has taken any enforcement actions against Kearsarge nor communicated with the district about the board’s decision at all, Fortney confirmed on Monday.

Beyond confirming the lack of communication, Fortney declined to comment.

The law, which bars transgender girls from grades five through 12 from playing on girls’ school sports teams, has become a cultural flash point in New Hampshire and nationally.

Kearsarge Regional is one of three school districts in the state that has a transgender girl who has publicly indicated she wishes to play on a girls’ team. The other two districts – Pembroke and Pemi-Baker in the Plymouth region – were sued by the transgender girls who attend their schools shortly after the law went into effect in August, and a federal judge issued a preliminary order barring the two school districts from enforcing the law.

In Kearsarge Regional, however, no analogous court order is in effect. Instead, the school board voted on its own not to enforce the law, citing its potential conflict with the Equal Protection Clause of the Fourteenth Amendment, as well as with Title IX and a state law, which both prohibit discrimination on the basis of gender identity.

The Kearsarge board’s assessment after consulting with its legal counsel was that it faced legal liability whether it chose to comply with the new law or not, Fortney said in an interview at the time the board made its decision in late August.

“There’s no winner on either decision you make, because you open yourself up potentially for liability on both sides,” he said. “But looking at the biggest piece and the level of liability and impact, that’s kind of where the board went.”

The decision appeared to be at odds with initial guidance from Department of Education Commissioner Frank Edelblut, who wrote school leaders following the Pembroke and Plymouth court order that the law remains “applicable to all other students in New Hampshire school districts.”

Kearsarge Regional is believed to be the only school board in the state to publicly decline to comply with the law.

Department of Education spokesperson Kim Houghton referred a request for comment on the lack of action against Kearsarge to the Attorney General’s Office, citing the pending litigation in the Pembroke and Pemi-Baker case. She also referred to the letter sent by Edelblut which indicated that the litigation she was referencing didn’t apply to other school districts like Kearsarge.

A spokesperson for the Attorney General’s Office, which is defending against the Pembroke and Pemi-Baker lawsuit, wrote that his “office is committed to upholding the rule of law and ensuring that the provisions of HB 1205 are respected.”

However, the spokesperson, Michael Garrity, declined to comment on the lack of enforcement in Kearsarge specifically, except to reiterate a portion of his statement about the potential for legal claims filed by individuals.

The Right-to-Know requests asked for all communication between the school district and either the Department of Education or the Attorney General’s Office regarding the district’s decision not to enforce the law, as well as for documentation of actual or potential “private causes of action” initiated against the district related to the law.

Fortney wrote that there are no documents responsive to any of the requests. He later confirmed that there were no verbal communications, either.

The lack of clarity about the status of the new law has led to confusion for many school district administrators, according to Chris Erchull, the lead lawyer representing the Pembroke and Pemi-Baker students who have sued.

“School boards are in a difficult position for sure,” Erchull said following a court appearance last month. “Do we comply with this state law that conflicts with federal law, or not?”