IW School Board adds transgender law to policies

Published 11:07 pm Thursday, August 12, 2021

Isle of Wight County’s School Board voted 3-1 Aug. 12 to enact a series of policy changes intended to protect transgender students.

State law now requires all Virginia school boards 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.

Since Isle of Wight’s nondiscrimination policies already included a reference to gender identity, Superintendent Dr. Jim Thornton had previously advised the Board that Isle of Wight could achieve compliance with the new law simply by tweaking the language of those existing policies — in some cases by just adding a legal reference to the new law, Virginia Code 22.1-23.3.

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The dissenting vote came from Board Chairwoman Jackie Carr, who took issue with adding the legal reference to Virginia Code 22.1-23.3, reiterating a concern she had expressed during a July 28 work session that doing so could bind Isle of Wight to subsection B of the law, which states school boards must adopt policies that are “consistent with” but may be “more comprehensive than” a series of model transgender policies the Virginia Department of Education has developed.

“I support our current policies that were discussed at the July 28 work session that protect the rights of all students and prohibit discrimination of any kind including gender identity,” Carr said. “I do not support adding the Virginia code, section 22.1-23.3 to the legal reference section because it could imply that we support the entire 27-page VDOE model policy document.”

The document to which Carr refers explains the reasoning behind each VDOE-recommended model policy. For example, one of the recommended policies Isle of Wight chose not to adopt verbatim would have required school personnel to only disclose information relating to a student’s gender identity “to other school personnel with a legitimate educational interest.”

Disclosing a student’s transgender status, the VDOE document states, can pose imminent safety risks if his or her parents are not supportive, potentially leading to that student losing family support or housing. As such, if a student comes out as transgender at school but asks that his or her parents not be informed, “this should be respected,” the document states.

According to former Isle of Wight School Board attorney H. Woodrow Crook, being at least “consistent with” if not “more comprehensive than” the model policies is not optional. The Smithfield Times reached out to Crook for an expert opinion following Carr’s July 28 remarks as to whether adding a reference to the state code would or wouldn’t force Isle of Wight into compliance with the model policies, even if the School Board chose not to adopt those policies.

Crook referred to the transgender law as setting “a minimum requirement” for schools in Virginia.

“That is, they are to adopt and comply with the model policies developed by the State Department of Education,” Crook said. “The individual school board can adopt policies that are more comprehensive than the model policies but they are bound to the minimum requirement of the State, which is the model policies promulgated by the Department of Education.”

With regards to “outing” an LGBTQ student, the Federal Educational Rights and Privacy Act already prohibits schools from disclosing personally identifiable information from student records, Thornton said.

“We didn’t put that in our policy because it’s already law,” Thornton said.

To comply with FERPA, a school division would need to secure parental permission as to whom can and cannot be informed of a student’s transgender status. But FERPA, according to Thornton, doesn’t prohibit a school division from informing the parents themselves.

“We can’t keep that secret,” Thornton said. “We’re going to talk to the parents. We’d prefer you talk to your parents, and we try to help them tell the parents … but we’re not going to hide that from the parent, because, also, parents have constitutional rights because their child’s not an adult.”

“That’s a tough one but we’ve talked to our attorney … if we feel like a student’s in danger from telling that’s more of a Social Services issue like any other issue, then we might consider that,” Thornton added.

John Collick, who’s running against Carr for her Carrsville District School Board seat this November, was the only person to sign up for citizens’ time to speak on the transgender policies. He arranged with the School Board to defer his remarks until the end of the meeting.

“Please remember that you represent the citizens of Isle of Wight, not the Virginia legislature,” Collick said. The job is to set policy reflective of our shared community values … not to enforce any unconscionable laws … Parents must be notified when a child identifies as transgender, and at the 28 July work session, the superintendent clearly articulated that’s exactly what would happen, and I thank you, sir.”