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Court ruling could affect restroom policy

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Federal appeals court decision is counter to Grayson’s policy on transgender students

Staff Reports

RICHMOND – The U.S. Circuit Court of Appeals for the Fourth Circuit of Virginia will not rehear the case of a Gloucester County transgender high school student suing his school board over discriminatory restroom policies.

This action could affect a policy adopted in May by the Grayson County School Board, which says all students must use the restroom that matches the gender listed on their birth certificate.

The federal appeals court denied the Gloucester County School Board’s request for a review of an April decision, which held that Title IX protects the rights of transgender students to use school restrooms consistent with their gender identity.

Grayson’s policy was adopted at a special meeting on May 20, a week after the U.S. Departments of Justice and Education issued guidelines that said schools must accommodate requests from transgender students to use the restroom of their choice.

The Grayson School Board unanimously approved the policy — pre-written by a conservative political rights group called the Alliance Defending Freedom — the same day it was presented to members by Sen. Bill Carrico. The Republican senator from Grayson said he and other parents with children in county schools were worried about safety.

(The Gazette contacted Grayson school officials to comment on the federal court ruling and its ramifications, but none responded by the deadline for this edition of the newspaper.)

Schools Superintendent Kelly Wilmore said Grayson has received no restroom requests from transgender students at this time.

“Now that the Fourth Circuit’s decision is final, I hope my school board will finally do the right thing and let me go back to using the boys’ restroom again,” said Gavin Grimm, the Gloucester high school junior who is the plaintiff in the case. “Transgender kids should not have to sue their own school boards just for the ability to use the same restrooms as everyone else.”

Grimm, who was born female but identifies as male, was allowed to use a boys’ restroom for a few weeks, until Gloucester adopted a restroom policy similar to Grayson’s.

In April, a three-judge panel ruled two-to-one in favor of Grimm in his challenge to the policy, which segregated transgender students from their peers by requiring them to use “alternative, private” facilities.

The ruling marked the first time a federal appeals court has determined Title IX protects the rights of transgender students to use sex-segregated facilities that are consistent with their gender identity.

Grayson County’s Alliance-drafted policy says the term “sex” refers to an individual’s “immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth” and listed on a birth certificate.

It further states that students must use every public school’s restroom, locker room and shower room accessible by multiple persons at the same time, in accordance with their birth gender.

Grayson’s adopted policy does include an accommodation for students who, for any reason, request additional privacy — the student may submit a request to the school principal for access to an alternate, private facility. These incidents will be handled on a case-by-case basis, according to the policy.

Letter to Parents

On May 18, Wilmore sent a letter to parents of students in the school system, stating that the division was aware of concerns about this issue after receiving correspondence about the federal guidelines.

In the letter, Wilmore said, “In order for a student to be allowed transgender bathroom permission, he or she must give a request in writing to the school, and the parent must sign the request. At this time, we have not received one request for transgender status from any students. If we do, I am strongly opposed to granting this request.

“It is my job to keep all students safe, and I have serious issues and reservations about allowing members of the opposite sex into a school bathroom or shower. I foresee possible issues of sexting, child pornography, indecent exposure, and sexual harassment.”

He noted that the federal guidance “threatens to pull funding from public schools if they do not comply with the order to allow transgender students to utilize the bathroom of his or her choice.”

According to the news release from the U.S. Departments of Justice and Education, under Title IX of the Education Amendments of 1972, schools receiving federal money cannot discriminate against transgender students; further stating that both federal agencies treat a student’s gender identity as the student’s sex for purposes of enforcing Title IX. 
The guidance said schools must treat the student consistently with his or her gender identity. A school may not require transgender students to have a medical diagnosis, undergo any medical treatment or produce a birth certificate or other identification document before treating them consistent with their gender identity.

The federal guidelines do not require any student to use shared bathrooms or changing spaces, when, for example, there are other appropriate options available. Schools can also take steps to increase privacy within shared facilities.

In Wilmore’s letter, he notified parents that Carrico had contacted the Grayson school system with information about the guidance, noting that the senator has “boldly taken a stand against this policy.

“I have yet to receive any written legislation from him or the law firm he has recruited to help with this matter,” Wilmore wrote. “He has promised me this information very soon. The school division has very limited funds. There is no such thing as a ‘free’ lawyer, or free law suit, especially at the federal level.”

According to Wilmore, who spoke to the press in May, the Alliance promised that, if the policy is legally challenged, it would defend any school system that adopts the policy all the way to the Supreme Court for free.

Wilmore said in the letter that “There is no timetable or rush at this current time... I will not get our school division involved until all facts are presented and the funding is promised, in writing...” he said in the May 18 letter.

School officials have not said whether they received this guarantee in writing, or if it was a verbal agreement.

“In the meantime, we will protect our children and table any requests for transgender status,” Wilmore wrote. “Once all facts are presented by the Senator, I will present them to our school board and attorney for review.”

Two days later, Carrico and an Alliance representative met with the school board and the policy was adopted.

Carrico said in a previous interview that he was concerned that the Department of Justice’s directive “leaves loopholes for pedophiles,” and other opportunities for inappropriate situations within the school system.

“If what they are saying is just that you have to identify as what you are saying you are that day, to use a locker room or a bathroom, then we are in trouble,” he said. “What is next? Will someone say that their birth certificate says they are a white male, but now they are a black male?”

School superintendents in Carroll County and Galax have stated that they do not plan to take immediate action in response to the federal guidelines.