Pressure has mounted on the Stafford School Board after it decided to prohibit a transgender student from using the bathroom of the gender the student identifies with.
The family of the Hartwood Elementary School student, who was born male but identifies as a female, has hired a lawyer, though no steps beyond that have been taken. Asaf Orr with the National Center for Lesbian Rights is representing the family.
“Our approach to these situations is to start by communicating with the district in hopes of educating them on the needs of transgender students and offer the assistance and resources they may need to implement school policies and practices that affirm each student’s gender identity,” Orr said.
The family has declined interview requests.
The Hartwood student had at first been allowed by school staff to use the female restroom.
But after the board faced some backlash from 15 speakers at a board meeting, the board reversed that decision in late March.
At least 15 speakers then urged the board about a month later to accommodate the transgender student’s request to use the female bathroom. Another five speakers supported the board’s position.
“Which bathroom do you think I should use?” asked Brian, a North Stafford High graduate who shared his transgender struggles in a Free Lance–Star article on Sunday. He has asked that his last name not be used.
Brian’s stepfather, Greg Robinson, said that the board’s decision increases the risk of transgender students committing suicide.
“I can tell you it’s not a question of choice,” Robinson told the board. “It is a true condition. And I thank God every day of my life that my wife and I and my other children were able to accept my child because if we hadn’t, that child wouldn’t be alive today.”
After the board voted to reverse the staff’s decision, Stafford Superintendent Bruce Benson said that the issue wasn’t clear, and that they were hoping to get some direction from state lawmakers or the Virginia School Boards Association.
Virginia is not one of the more than dozen states with laws explicitly prohibiting discrimination in schools based on gender identity, according to the National Center for Transgender Equality.
Some cities and local school districts have policies protecting transgender students even when the state does not.
Orr said that even without those state laws or local policies, all schools that receive federal funding must adhere to Title IX, the federal law that prohibits sex discrimination in schools.
The U.S. Education Department’s Office for Civil Rights released a document in April 2014 saying that Title IX’s nondiscrimination clause “extends to claims of discrimination based on gender identity.”
Attorney General Mark Herring released an opinion in March stating that local school boards have the authority to include sexual orientation and gender identity in their anti-discrimination policies, reversing an opinion offered by his Republican predecessor.
In early May, the Fairfax County School Board added “gender identity” to its nondiscrimination policy. Charlottesville and Alexandria already had done so. Alexandria had been required to add the definition by the U.S. Department of Education.
The Washington Post reported that two state Republican delegates spoke out against Fairfax’s move, citing case law that they said shows the board doesn’t have the authority to create protected classes.
The Alliance Defending Freedom, a nonprofit legal organization, sent a letter to the Fairfax School Board.
“No court has ever interpreted Title IX as requiring schools to give students access to opposite-sex restrooms and changing areas,” the letter states. “Rather, courts have consistently found that schools do not discriminate under Title IX when they limit use of sex-specific restrooms to members of the specified biological sex.”
The letter goes on to say that students have a right to bodily privacy and that right is “clearly violated when students . . . are forced into situations where members of the opposite sex may view their partially or fully unclothed bodies.”
Orr said that while there haven’t been court cases that have laid the issue fully out, the U.S. Department of Education has been clear.
The Colorado Civil Rights Division sided in 2013 with a transgender student who filed a civil rights complaint after the student was told to stop using the girls restroom.
That same year, a California school district entered into a resolution with the U.S. Department of Education’s Office for Civil Rights after a student claimed that the school district prohibited him from accessing male facilities.
The school district agreed to create “a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes,” a presentation to the VSBA said.
Gloucester County is facing a federal civil rights complaint after adopting a policy in December 2014 limiting bathroom and locker facilities to students’ biological genders. Under the policy, transgender students would use an alternative private facility.
In a response to the complaint, Gloucester County’s attorney pointed to a dismissed lawsuit in Pennsylvania filed by a transgender male student against the University of Pittsburgh, The Daily Press reported.
A judge ruled in March that the university didn’t discriminate against the 25-year-old because he was medically a woman when it prohibited him from using the male facilities on campus, according to The Daily Press.
In a presentation to VSBA, lawyers with the firm Sands Anderson advised school divisions to permit students to use facilities based on their gender identification.
Equality Virginia, a statewide education and advocacy organization seeking equality for lesbian, gay, bisexual and transgender individuals, wrote in an op–ed in The Free Lance–Star that the board’s vote is “discriminatory, unacceptable, and illegal.”
Four in 10 students in Virginia schools experienced verbal harassment based on the way they express their gender, and 1 in 10 have experienced physical assault, according to Equality Virginia.
Rebecca Glenberg, legal director of the ACLU of Virginia, said in an interview that the board’s final decision was a violation of Title IX.
“It is our understanding that their [School Board’s] own Title IX expert also advised them not to do this. It’s also my understanding that the school itself had been very supportive of this child and had been working with the family and that there were really no problems or issues until people from outside the school started to get involved,” Glenberg said.
Both Glenberg and Orr said that typically they see that the problem lies with the adults, not the students.
Neither were aware of cases where the concerns of the parents opposed to the transgender student’s request were realized. Some parents worried that the transgender student would try to invade the privacy of other students in the bathroom.