Could legal battles be next for school divisions that don’t comply with policy changes for transgender students?

Hanover County

HANOVER COUNTY, Va. (WRIC) — In the days following the Hanover County School Board’s decision not to move forward with new policies on the treatment of its transgender students, questions remain about what the fallout could be and who will be held responsible.

Over the past several weeks, dozens of community members have rallied in Hanover County in support of and against proposed changes to the school division’s nondiscrimination policy. As drafted, such policy changes would have allowed a student who expressed a gender identity different from their official education records to contact the school counselor assigned to them for additional support and, with the consent of a parent or legal guardian, use the facilities assigned to the student’s expressed gender identity.

These policy changes were up for consideration by the Hanover County School Board in reaction to a law passed by the General Assembly in 2020 that created a new, statewide set of guidelines for school districts on how their transgender and nonbinary students are treated. That legislation required school divisions throughout the commonwealth to have instituted changes to such policies by the start of the 2021-22 school year.

According to the Code of Virginia, the Virginia Department of Education (VDOE) was then tasked with developing and making available “to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices.”

But the drafted policy changes put forth by Hanover County felt short of those laid out by the VDOE because of the school board’s language, which would have required consent from a parent or legal guardian.

However, according to legal counsel for the Hanover County School Board at Tuesday night’s meeting, during which board members ultimately voted 4-3 to disapprove the proposed revisions to its nondiscrimination policy as they pertain to the treatment of transgender students, such policies were also being considered due to a ruling in the United States Court of Appeals for the Fourth Circuit.

In Grimm v. Gloucester County Public School Board, a transgender student sued the local school board for being forced to use the girls’ restrooms based on his assigned gender under their policy.

“That particular case dealt with the rights of transgender students to use the bathroom assigned to the gender with which the student identifies. It also addressed their ability to amend their school records to reflect the gender with which they identify,” attorney Lisa Seward said. “The Fourth Circuit held that Gloucester’s bathroom policy, which required the student in question to use the girls restroom or a single-stall restroom, that was what Gloucester’s policy said, that that policy violated the student’s constitutional rights.”

Hanover County falls within the Fourth Circuit. According to Seward, when this decision was handed down by the U.S. Court of Appeals for the Fourth Circuit, it became law in that jurisdiction.

“It was reported that that particular school board eventually settled the case with the student for approximately $1.3 million, and it took about six years of litigation,” counsel said.

According to 8News’ legal analyst Russ Stone, Hanover County could face a similar fate by not adhering to the model policies set forth by the VDOE, as required in the Code of Virginia.

“The school board, it’s their job to make certain decisions, and they’ve obviously made a decision in this case not to follow what has been, to put it gently, at least recommended by the state,” Stone said. “By refusing to do that, there’s a possibility that there could be funding issues down the road.”

According to the VDOE, there is no state funding tied to this decision. However, Stone said that the state and/or private citizens could make the decision to file a lawsuit against Hanover County Public Schools and other divisions like it.

“It’s something that could be the subject of litigation. Ultimately, a judge might have to decide it,” he said. “I, personally, think that a more important possibility is that if there were a student in one of those schools that was able to establish that some kind of harm had come to him or her as a result of the school not following those policies […] the lawsuit would be on better footing if the plaintiff in a lawsuit like that was saying, ‘You know, this wouldn’t have happened if you just followed what the state had recommended.'”

Although changes to policies on the treatment of transgenders students in school divisions throughout the commonwealth are detailed in the Code of Virginia, Stone referred to this legislation as guidance or a recommendation, in line with a decision that came out of the Lynchburg Circuit Court.

In March of 2021, The Family Foundation of Virginia, the Founding Freedoms Law Center and a parent from Hanover County asked the court to send the VDOE’s model policies back for revision, alleging that such policies violated parent-child rights, as well as students’ right to exercise their religion freely, But in July, Lynchburg Circuit Court Judge Frederick Watson dismissed the suit.

However, in that opinion, Watson referred to the model policies as guidance.

“It’s more a question of, ‘This is what we think is the best practice, and if you don’t follow that best practice, there may be other kinds of consequences,’ in the form of lawsuits or possible issues with funding and things of that nature,” Stone said.

At Tuesday’s meeting, there was some discussion among School Board members about potentially revisiting policies on the treatment of transgender students in its schools in the future. But there was no date set for that discussion, leaving Hanover County Public Schools more than two months out of compliance. For now, the school division’s nondiscrimination policy remains unchanged.

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