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Hanover schools finally has a policy for transgender, nonbinary students. But is it legal?

Posted at 6:30 PM, Aug 31, 2022

HANOVER COUNTY, Va. — Hanover County Public Schools will start the new school year with a new bathroom policy for transgender and nonbinary students.

During its Aug. 30 meeting, the Hanover County School Board voted 5-2 in favor of requiring transgender and nonbinary students to submit a request to the board to use a specific bathroom that they identify with.

Each request is evaluated on a case-by-case basis.

Per the policy, a written request must be sent to the principal of the school where the student attends, and the school administration will receive which may include:

  1. A statement that specifies their gender identity
  2. Signed statements from a physician, therapist or licensed counselor verifying that they’ve been diagnosed with gender dysphoria or that the student consistently and authentically expresses a binary gender identity
  3. Statements from students’ parent or guardian
  4. Disciplinary or criminal records
  5. Information related to the privacy and safety of other students
  6. Any other relevant information including documents from other interested parties

The principal then writes a summary of the request and sends it to the school board to consider and review the submission. It must review the submission no later than the next regularly scheduled monthly business meeting.

"The primary responsibility of school administration is to serve as the recipient of the request, which may include any supporting documentation that the parents/guardians wish to include and forward all documentation to the School Board for its consideration and decision," said School Board Chair John F. Axselle III in a statement to CBS 6.

If a request is denied, the student, along with the parent or legal guardian may resubmit their request if the student's circumstances materially change.

Per the policy, requests will remain confidential in accordance with state and federal laws related to student records.

"The primary consideration of the School Board in making any decision will focus upon ensuring that the necessary legal requirements will focus upon ensuring that the necessary legal requirements are met, as outlined in the Grimm V. Gloucester County School Board ruling by the U.S. Court of Appeals for the Fourth Circuit. In other words, the request should be accompanied by sufficient information to achieve the Grimm standard, specifically as it relates to how the student has 'consistently, persistently and insistently' expressed their identity. If the School Board does not believe this standard has been met, then the School Board may request additional information prior to the resolving the request," Axselle said. 

Students that already have approval to use their restroom of choice do not need to submit a request again.

Eden Heilman, the Legal Director of the ACLU of Virginia said this policy could violate state law, saying it does not comply with the Virginia Department of Education's model policies to protect transgender students.

"We believe that the policy that was passed by Hanover does not meet the model policies and doesn’t meet the law that the Virginia legislature has passed. The Virginia legislature also passed something called the Virginia Human Rights Act which forbids discrimination against people on the basis of gender identity and that’s another issue that I think we see with this potential policy, that it is potentially discriminatory on its face," Heilman said. 

Per the VDOE's model policies, a school district cannot use methods that could "out" students to a parent or guardian or question the way they identify.

On page 12, the policy reads: "Disclosing a student's gender identity can impose imminent safety risks, such as losing family support or housing. There are no regulations requiring school staff to notify a parent or guardian of a student's request to affirm their gender identity and school staff should work with students to help them share information with their family when they are ready to do so."

"One of the concerns about this policy is that it may require students to out themselves to their school board and potentially to their parents before they're ready," Heilman said.

Craig Konnoth, a professor at the University of Virginia, said he believes the policy is vague, and places a burden on students to determine what personal information they will have to share.

"The policy says, ‘We may require all these things’ and these things include documents regarding the privacy of other students. I mean, I have no idea what that means," Konnoth said.

"We don't even know what ground they can be denied on, it's not really clear that there's a process. There's no real process for appealing it. So you know, a student can provide all the information that is requested under this and still have their accommodation denied. So it is definitely, you know, alarming," Heilman said.

The board said the policy comes as an attempt to protect the safety and privacy of all students. However, Konnoth said requiring transgender students to provide certain documentation or statements can be considered a breach of privacy.

“I don’t know of any other situation where a school board says, ‘Hey we need to know all of this information in order to get a hall pass to go to the bathroom. I mean I don’t know a situation where any student has to ask the school board for a hall pass," Konnoth said. "I think that when you look at this policy you see the complete disregard the school board has for these very vulnerable students.”

The policy was written with guidance from the Alliance Defending Freedom.

"The Hanover County School Board is committed to carrying out the critical task of providing excellence in education for their students while adhering to the law and advancing a culture that demonstrates dignity and respect for all students and staff who are part of the community," Ryan Bangert, senior counsel and VP of Legal Strategy at ADF, said in a statement to CBS 6. "We look forward to serving the board by providing legal advice that accomplishes these goals. "

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