Tuesday night, the Hanover County School Board narrowly rejected a proposed policy change around bathroom access. The policy would have permitted transgender students to use bathrooms and locker rooms that correspond with their gender identity.
The draft policy update was voted down 4 to 3, over the objections of Chairwoman Ola J. Hawkins, Vice Chairman Robert L. Hundley Jr. and board member Sterling H. Daniel.
Board member John Axselle expressed a desire to “kill” the policy updates.
In a dramatic lull before the vote, Daniel asked the district’s legal counsel if rejecting the policy opened the school system to legal risk.
Two federal courts ruled the Gloucester County school board violated federal law by prohibiting transgender student Gavin Grimm from using the same restroom as other boys and forcing him to use separate bathrooms.
“Are we asking our staff to break the law on a daily basis?” Hundley asked the district’s counsel.
Hanover’s counsel replied that that is what the law is. But that didn’t change the board’s decision.
Eden Heilman, legal director for the ACLU of Virginia, says that regardless of whether or not a district like Hanover passes policies protecting the rights of transgender students, students who are discriminated against can still pursue litigation because of the fourth district court decision in Grimm v. Gloucester County School Board.
“For example, if a school decides that a student can’t use the bathroom aligned with their gender identity and the facts and circumstances indicate that it is discrimination, student can file a lawsuit in federal court to hold Hanover County accountable, whether or not they pass those policies,” Heilman said.
A state law mandating schools follow model policies established by the Department of Education was downgraded to “guidance” by a state judge earlier this year. But Heilman says federal law trumps state law, and that federal law gives transgender students the right to use bathrooms in accordance with their gender identity.
The Hanover school board approved a separate policy update requiring school staff to use the name and gender consistent with a student’s gender identity unanimously. But language in the policy indicates that a student would need to have their parent or guardian’s permission when making such a request.
That’s disturbing to Vee Lamneck, executive director of Equality Virginia, who says lack of family support can contribute to LGBTQ+ students experiencing homelessness. Lamneck pointed to statistics that show LGBTQ+ students experience homelessness at a much higher rate than other students.
“40% of youth in the United States who are experiencing homelessness are LGBTQ, while only about 7% of the entire youth population in the country identify as LGBTQ. So those numbers are staggering,” Lamneck said. “And I think that there are many reasons why transgender or non-binary young people choose not to come out to their parents. There's a real concern for safety, real concern to be able to have a roof over their heads and a meal in their belly. And so many young people choose not to come out because of that fear [of getting kicked out].”
Sarah Via, who helped file a lawsuitwith the Family Foundation of Virginia against the VDOE over the model guidelines they proposed for schools, says the language about parent communication was most upsetting.
“If they're writing that into a law that they [school staff] can lie to a parent’s face about something this big [a student’s gender identity], what else are they lying to parents in their face about already?” Via said.
Via says she doesn’t know what the solution is, but says she doesn’t want the conversation to be an “us vs. them” debate. But the divide over the issue was on clear display at Tuesday’s school board meeting. Those in opposition to the policy updates held up signs that said “protect every kid” while those in support of the policy updates held signs that said “ ‘every kid’ includes trans kids.”
Via says her daughter doesn’t feel comfortable in locker rooms with transgender students. Kelly Merrill, the parent of a transgender student in Hanover County Public Schools, says “transgender lives are more important than the comfort of people who have unreasonable fears.”
Merrill is deeply disappointed with the school board’s decisions, and says it won’t address problems her son faces at school. For example, she says they used an incorrect name for him in the yearbook last year.
“The number one issue for my child every day is the low key hum of disapproval and bullying from children, peers at schools,” Merrill said. “That comes from the environment - the tone - that the school board sets. And when the school board says publicly, over and over again, that they aren’t going to do what it takes to treat our children equitably, then that contributes to a school environment where my kid can very easily be ostracized by his peers at school.”
