ASHLAND, Va. (WRIC) — Nine months after voting against fully complying with state law on the treatment of transgender and nonbinary students, Hanover County’s School Board will introduce a proposal that would require transgender students to make a request for access to facilities that match their gender identities.

State lawmakers passed a law in 2020 requiring all school districts to adopt guidelines crafted by the Virginia Department of Education regarding transgender and nonbinary students by the start of the 2021-22 school year.

The Hanover school board adopted some requirements last November but opted against implementing new rules allowing transgender students to use bathrooms consistent with their gender identities. That decision led the Virginia ACLU to file a lawsuit against the board on behalf of five parents of transgender students.

“When these school boards choose not to adopt these policies, which is required by state law, we’re creating a patchwork of protections for trans and nonbinary youth across Virginia,” Narissa Rahaman, executive director for Equality Virginia, told 8News. “And that’s pretty unfair to say that where you go to school and how inclusive and affirming and safe your school is going to be dependent upon your zip code.”

The proposal being introduced by Hanover’s school board Tuesday would require transgender students, with their parents or guardians, to submit a formal request to use school bathrooms, locker rooms or changing facilities that align with their gender identities and give the board authority to approve or deny them.

Critics of the proposed policy say it’s unnecessary, based on false assumptions and causes more harm to transgender and nonbinary youth. A University of Richmond law professor says while the board’s response to individual cases could lead to challenges, the language in the proposed policy appears to be legal.

“To me, what they’re asking students to do is lawful. There’s maybe a difference between what is lawful and what might be the most generous and caring way to address the situation,” Jack Preis, law professor at the University of Richmond, said Monday. “As far as I can tell right now, it’s not unlawful.”

Under the proposal, transgender students and their parents or guardians would have to submit written requests to the school’s principal to use the restrooms, locker rooms and changing rooms that align with their gender identity. The proposed policy says school administrators can request a meeting with the student and their parents or guardians.

“It assumes that transgender and nonbinary students are out to their parents, that they’re in a supportive environment where their parents can be a part of this process as it is required,” Breanna Diaz, the policy and legislative counsel for ACLU of Virginia, told 8News.

The model guidelines from VDOE, which Equality Virginia helped develop, call for students to be allowed to use pronouns, school bathrooms and locker rooms that reflect their gender identity. VDOE’s policies also state that schools should support a need for privacy and “not disclose a student’s gender identity to other students or parents.”

Under the 2020 law, school boards in Virginia were required to adopt rules “that are consistent with but may be more comprehensive than” the model guidance from VDOE.

The proposed policy also states that administrators will also receive “all relevant information,” which may include:

  • a statement from the student that, among other things, specifies their gender identity and how they have consistently, persistently and insistently expressed that identity
  • signed statements from the student’s personal physician, therapist or licensed counselor verifying that the student has been diagnosed with gender dysphoria and/or that the student consistently and authentically expresses a binary gender identity
  • statements from the student’s parent or guardian
  • student disciplinary or criminal records
  • information related to the privacy and safety of other students
  • any other relevant information, including documents from other interested parties

Preis said legal challenges could arise if the school board misapplies its standards when reviewing specific requests. For example, if the board indiscriminately denies a student who submits the required information based on unspecified criteria such as a medical professional’s expertise.

Diaz and Rahaman both said the proposal assumes all students have access to “gender-affirming health care.” They also pointed to reports and studies showing that transgender and nonbinary children are more likely to face bullying, harassment, violence and attempt suicide than other youth.

“So, you have these students in Hanover County who are trans and nonbinary seeing the school board, which is there to making sure they’re getting the best education possible, introducing policies that are only going to further stigmatize and marginalize them and discriminate against them,” Rahaman said. “Just the introduction of this policy, the fact that the school board is putting it out there, that will have an impact on kids.”

A parent of a nonbinary middle schooler in Hanover County, Christopher Berg, called on the school board to “do better,” saying the proposed policy is a product of “when people are afraid of transgender students” instead of understanding their experiences and struggles.

“I am still disappointed that the School Board continues to violate the law. All of the board members signed a Code of Conduct stating, among other things, that they would uphold and enforce all laws,” Berg told 8News. “At best, they’re selectively enforcing laws – but let’s be honest here – they’re intentionally ignoring and violating laws regarding transgender students.”   

John F. Axselle III, the school board’s new chairman, told 8News Monday that it would premature to address the proposed policy before it is formally presented to the board for consideration Tuesday. He did, however, share that the policy was an effort between the board, its attorney and counsel from Alliance Defending Freedom.

“In the meantime, I can share that the proposed policy represents a joint effort between the School Board, Alliance Defending Freedom counsel, and our School Board Attorney to meet legal requirements,” Axselle wrote in an email.  

Hanover’s school board approved a plan in March to have ADF, which some have classified as an “anti-LGBTQ hate group,” review the district’s policy regarding the treatment of LGBTQ students.

Hanover County’s School Board is expected to introduce and discuss the proposed policy during Tuesday’s scheduled meeting but not hold a final vote until another meeting.