School boards that choose to rely on their existing nondiscrimination policies rather than adopt the Virginia Department of Education’s recommended protections for transgender students do so at their own peril, warns a July 30 VDOE memorandum to school superintendents.

State law requires school boards to adopt transgender protections no later than the 2021-22 school year that are “consistent with” or “more comprehensive than” VDOE-recommended policies pertaining to the use of bathrooms and locker rooms, student privacy, bullying and harassment, dress codes and sex-specific school activities.

One such VDOE-recommended policy would require school staff to use a transgender student’s preferred name and pronouns. Another aims to restrict whom staff can tell when a student comes out as transgender at school, the goal being to prevent staff from “outing” a student whose parents may be unaware and unsupportive of their child’s transition.

The Virginia School Boards Association had advised a number of school divisions that they can achieve compliance with the new law, Virginia Code 22.1-23.3, without adopting the state-recommended policies if they make changes to their existing nondiscrimination policies — in some cases simply by adding a legal reference to the aforementioned code. But “nondiscrimination policies alone may be insufficient to meet the full scope of this legal mandate,” the memo warns, and school boards that choose not to adopt the policies “assume all legal responsibility for noncompliance.”

Isle of Wight County Schools received the memo Aug. 2, according to division spokeswoman Lynn Briggs. But the county’s School Board still voted Aug. 12 to go with the VSBA’s recommendation. The night of the vote, Board Chairwoman Jackie Carr even suggested not referencing the state code on the grounds that doing so could “imply that we support the entire 27-page VDOE model policy document.”

“We’re not consistent with the model policies if we’re not doing all the other stuff that’s in those pages,” she’d said during a previous work session on the matter July 28.

No state funding is contingent on a school division complying with the transgender law, but “noncompliance may still be costly,” the memo warns. Under Virginia law, any parent or guardian of a student attending a public school who is “aggrieved by an action of the school board” may, within 30 days of the vote, petition that city’s or county’s circuit court to review the school board’s action.

A lawsuit that had sought to challenge the constitutionality of the model policies, the memo adds, was recently dismissed in Lynchburg Circuit Court for having lacked standing.

The American Civil Liberties Union’s Virginia chapter and its partners, at an Aug. 17 virtual press conference, joined in warning local school boards of the consequences of noncompliance.

During the conference, Eden Heilman, director of the ACLU of Virginia, told the story of Gavin Grimm. Six years ago, a then-15-year-old Grimm had come out as transgender to staff at Gloucester County High School and asked that he be allowed to use the boys’ restroom.

“His request was granted and he used the boys’ restroom without incident for seven weeks until a small group of parents learned about Gavin’s gender identity,” Heilman said. “The School Board caved under the pressure of a very vocal mob” and passed a policy requiring transgender students to use bathrooms corresponding to their sex at birth or separate unisex bathrooms.

After a five-year legal battle that spanned the rest of Grimm’s high school career and beyond, the 4th U.S. Circuit Court of Appeals, in 2020, ruled the bathroom ban unconstitutional. The U.S. Supreme Court, earlier this year, refused to hear the Gloucester County School Board’s final appeal.

Now, the ACLU is looking to recoup more than $1.2 million in legal costs from Gloucester County Public Schools.

“That is a hefty price tag, especially if a school district doesn’t have help from the insurance company because they acted outside of the scope of state law,” Heilman said.

“School Boards have a fiduciary responsibility to be good stewards of our limited financial resources,” added Karl Frisch, an openly LGBTQ member of Fairfax County’s School Board who joined Heilman as one of the panelists at the press conference. “These are taxpayer dollars. Every dollar wasted is a dollar that can no longer be spent in the classroom. Contrary to what school boards are now hearing from organizations tied to anti-LGBTQ hate groups, school divisions are required by law to develop policies that align with the Virginia Department of Education’s model policies protecting transgender and other gender-expansive or non-binary students. This is not optional. School divisions that fail to follow the law are risking exposure to expensive legal battles that will drain their resources just as they are emerging from a costly pandemic.”

The VSBA also confirmed its receipt of the July 30 VDOE memo, but is maintaining its position that schools can comply with the law without necessarily adopting the VDOE model policies.

The VSBA’s recommendation to school divisions “has not changed,” said Elizabeth Ewing, the VSBA’s director of legal and policy services.