Transgender policy vote set for Aug. 12

Published 6:59 pm Tuesday, August 3, 2021

Isle of Wight County’s School Board is set to vote Aug. 12 on a series of proposed policy changes pertaining to transgender students.

Per a state law passed last year, Virginia school boards have until September to adopt transgender-inclusive policies pertaining to the use of bathrooms and locker rooms, student privacy, bullying and harassment, sex-based dress codes and sex-specific school activities with the exception of athletics, which are governed by the Virginia High School League.

Isle of Wight’s existing nondiscrimination policies include a reference to gender identity. At a July 28 work session, Superintendent Dr. Jim Thornton reiterated his belief that Isle of Wight can comply with the new law, Virginia Code 22.1-23.3, by tweaking the language of these existing policies — in some cases simply by adding a legal reference to that section of code.

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But even that gave School Board Chairwoman Jackie Carr pause.

“I have a problem with Virginia Code 22.1-23.3,” she said.

Specifically, she’s concerned adding the legal reference will bind Isle of Wight County Schools to subsection B of the law, which states school boards must adopt policies that are “consistent with” but may be “more comprehensive than” the model transgender policies the Virginia Department of Education has developed.

Thornton has recommended against Isle of Wight adopting the state-recommended policy language verbatim, particularly the model policy that would require school personnel to only disclose information relating to a student’s gender identity “to other school personnel with a legitimate educational interest.”

A VDOE guidance document that explains the reasoning behind each recommended model policy states that disclosing students’ transgender status can pose imminent safety risks to students without supportive families, such as a student losing family support or housing. As such, if transgender students ask that their parents not be informed of their gender identity, “this should be respected,” the document states.

Isle of Wight’s current policy, on the other hand, states the School Board “recognizes that the education of each student is a responsibility shared by the school and the student’s family.”

“We’re always going to involve the family in decisions and things that happen with individual students,” Thornton said. “Parents have constitutional rights.”

“This law goes against the constitutional rights, so to put that number in all our current policies, to me, brings conflict,” Carr said. “There is that ‘B’ that says we are going to be consistent with the model policies. We’re not consistent with the model policies if we’re not doing all the other stuff that’s in those pages.”

According to Thornton, adopting the model policies as written is at this time optional, with the exception of the requirement that schools allow transgender students to use bathroom facilities that correspond to their gender identity. That is now settled case law, per the 4th U.S. Circuit Court of Appeals ruling in Grimm v. Gloucester County School Board, which struck down Gloucester County Public Schools’ transgender bathroom ban in 2020 as unconstitutional. The U.S. Supreme Court, in June, rejected the Gloucester County School Board’s final appeal.

While the ruling legally bars Isle of Wight from denying transgender students access to the bathroom facilities of their choice, Thornton isn’t in agreement with VDOE’s guidance that it “can be emotionally harmful for a transgender student to be questioned regarding the use of restrooms” and therefore “school staff should not confront students about their gender identity upon entry into the restroom.”

“We’re still going to stop the student,” Thornton said. “A male goes up to the girls restroom, we’re going to stop the young man and say, you know, ‘what are you doing?’ And if the person says I identify (as female), we’re going to send them to the principal’s office. We’re going to call in the family, and we’re going to deal with it as an individual issue and work it out. That’s what we have always done. We’re going to continue that practice.”

But Thornton warned against removing the reference to Virginia Code 22.1-23.3 from Isle of Wight’s proposed policy tweaks. The recommendation to add the code comes from attorneys with the Virginia School Boards Association, he said.

“When you take that code off, I think you’re opening up the board to a possible lawsuit,” Thornton said. “VSBA attorneys have already done the work and have shared, ‘Do this and you’re in compliance with the law,’ and as board members, you take an oath to follow the law. I take an oath to follow the law, so I can’t recommend that you don’t follow the law.”

Windsor District School Board representative Julia Perkins agreed with Thornton.

“If we don’t follow the law, we’re asking for a lawsuit,” she said. “If we are not following the law, we are not doing our jobs.”

But Carr called the model policies “above and beyond” what the law requires and reiterated her concern that adding the code could force the division into adopting the model policies.

“That, to me, is what our community, many of our community, is not feeling comfortable with,” Carr said. “If we could take the ‘B’ out of it, I would not have a problem with it.”

Vice Chairwoman Denise Tynes agreed that Isle of Wight’s existing nondiscrimination policies were sufficient for compliance with the new law, and suggested the VDOE model policies were more intended for school divisions that did not have any protections for transgender students already in place.

“It’s a recommendation,” she said of the model policies. “So we are in compliance with what we are doing. We’re planning to continue to stay in compliance and go forward with what we have here with the few tweaks that we did.”

But Hardy District Board member Alvin Wilson warned, “We also have to be careful that we are on the same page” with surrounding school divisions.

“If we are on the wrong page thinking what we are doing is right then it’s not going to work, in my opinion,” he said.

Thornton said he heard similar concerns from a member of the community who suggested that by adopting Virginia Code 22.1-23.3, the division would be adopting the model policies.

“That’s his opinion; it’s totally wrong and is not the opinion of attorneys,” Thornton said. “I’m not going to suggest or make recommendations based on people’s fear … . Back when we first had gay students and lesbian students, the fear of them going to the restroom or the fear of a male gay student going into a male football locker room, ‘how dare they do this?’ Nothing came of it.”

“A lot of this is being blown up, that we are trying to turn people transgender,” Thornton added. “It is fear and rhetoric and this policy has none of those things in it.”

But Carr wasn’t backing down.

“When you’ve got a model policy that rejects the constitutional right of parents, I don’t want any connection to that,” she said.

The Christian Action Network, the Founding Freedoms Law Center and families whose children attend public schools in the city of Lynchburg and Hanover County had filed a consolidated lawsuit challenging the VDOE model policies over constitutional concerns relating to freedom of speech and religion, which Lynchburg Circuit Court Judge J. Frederick Watson dismissed on July 27 after citing case law on the definition of an “aggrieved” party.

“Because the model policies are directed only to school boards, they cannot affect or aggrieve anyone other than the school boards,” Watson writes in his ruling. “… They would not affect or aggrieve someone if the local school board, despite any potential repercussions, declines to act on them. Thus, the model policies do not affect or aggrieve the appellants, and the appellants will remain unaggrieved and unaffected absent actions related to the model policies taken by school boards.”