HANOVER COUNTY, Va. -- The Hanover School Board struck down a policy that would have allowed transgender students to use the restroom of the gender with which they identify.
The board voted 4-3 at a meeting on Tuesday night.
Hanover could face some legal challenges because of this decision, according to experts.
In a memo sent over the summer, Virginia State Superintendent Dr. James Lane told local school boards that state law passed in 2020 required them to adopt policies protecting transgender students. These policies had to be at least consistent with the model set by the state.
Among these policies was the right to use the bathroom of the gender with which the student identifies.
Lane said in the memo that while non-compliance did not carry penalties related to state funding, it could be costly "due to civil litigation or other associated liabilities" and pointed to a section of Virginia Code that states a legal guardian of a student within a school division who is "aggrieved by an action" of the local school board "may, within thirty days after such action, petition the circuit court having jurisdiction in the school division to review the action of the school board."
University of Richmond School of Law Professor Jack Preis said that could include lawsuits from parents or guardians of transgender students in the school system.
"Seeking review, this would be in the Virginia Circuit Court seeking review of that decision because it does not comply with the model policy," Preis said.
Preis said that the answer seems clear as Hanover didn't adopt the policy.
"And the court should order the school district to comply, to change their policy, And they'll have to go back to the drawing board and change things," Preis said.
He said lawsuits could also be filed in federal court, potentially under constitutional or Title IX violations.
"Perhaps Title XI, which is a federal statute protecting individuals from discrimination on the basis of sex. There's a potential constitutional claim, also, under the federal constitution," said Preis, who added all this assumes that the action taken Tuesday is final and the issue will not be revisited.
In an email to CBS 6 Wednesday afternoon, HCPS Board Chair Ola Hawkins wrote that as was mentioned during the meeting "several members of the School Board expressed a desire for additional time to craft a solution that works for all concerned individuals. A timeline was not established."
As to the implementation of what was passed, Hawkins said "we are beginning to work with the school division administration on the implementation of the Board’s expectations in this regard."
How changes in Virginia leadership could affect transgender policy in the Commonwealth
What happens with Hanover's transgender policy and policies in other area school systems could hinge on the big change in leadership coming in Virginia next year.
Republican Governor Glenn Youngkin will take over in January and it remains to be seen if he will direct his Superintendent of Education to change the state's model policy.
As it stands now, state law directed the Department of Education to adopt a model policy for the treatment of transgender students in Virginia schools. The current model policy said students should be allowed to use the facility that aligns with their consistently asserted gender identity.
CBS6 checked in with nearly all of the school districts in our viewing area to find out if they had actually adopted this portion of the model policy.
Chesterfield and Richmond do have a policy that allows students to use the bathroom that corresponds with their gender identity. Henrico does not.
"There is not a policy that specifically addresses bathroom use since that is covered by law. However, if requested, all HCPS schools can also offer access to gender-neutral restrooms," Eileen Cox, Chief of Communications for Henrico County Public Schools, said.
Prince George County didn't adopt the model policy, however, Division Superintendent Dr. Lisa Pennycuff said the system believes their policies meet the requirements of the law.
"Gender-neutral restrooms are available for our school community. The district is also in the early stages of developing plans for renovations to restrooms & locker rooms that will improve privacy for all. Our school staff meets with students who are transgender and their families to address the needs and concerns of each child and make the best plan possible. Our division will continue to strive to accommodate our students’ needs and the division is confident this can be done while also protecting the rights and safety of all of the children of Prince George," Dr. Pennycuff said.
Preis said it will be up to the court to decide if a school district's policy meets the standards of the state policy.
"If they are out of compliance with the model policy, and they know they're out of compliance, what the school districts are doing is saying fine, we would rather stand on principle and pay the money and we will do this until we are told by a court. Once we are told by a court, I guess we will fall back in line, but at this point, we are going to stand on principle so to speak," Preis said.
As for all of the other school systems in our area, CBS6 is still waiting to hear back from them about their policies.
If they do not comply will the state step in and take action? State Superintendent Dr. James Lane said in a memo back in July that state funding would not be pulled from school systems out of compliance.
Attorney General Mark Herring, when asked if he would take legal action, a spokesperson said it would be best to talk to the DOE about enforcement.
While no lawsuits have been filed yet, Meredith Mason with the ACLU of Virginia said they are "actively speaking to parents of transgender students in the district to understand how their kids are being treated in school each day." She added "we will continue to advocate for students who are facing discrimination in schools. We’re eager to hear from all parents and students who are concerned about Hanover County’s failure to protect trans and nonbinary kids."
Where does Hanover's vote fit in with what is happening in Virginia?
The Hanover vote came in the wake of a Northern Virginia family's legal action against the Loudoun County School system.
A teenage boy was convicted of sexually assaulting a girl at Stone Bridge High School over the summer.
According to the law firm that represented the victim's family, the boy claimed to be gender fluid and was permitted to use the girls' restroom where the assault occurred.
The same boy was later charged for another sexual assault at a different high school.
The lawsuit claimed the assaults could have been prevented and the school system failed to create "minimum safeguards" to protect students from sexual assaults when the Loudoun County School Board formalized its restroom-use policy.
The father of the Stone Bridge High School victim was arrested while confronting the school board about his daughter's attack during a meeting earlier this year. The law firm is also fighting those charges.
Loudoun Schools Superintendent said he believed all mandatory reporting protocols were followed in these cases but said they have found the process outlined by the U. S. Department of Education to be insufficient. He said the school system has hired a private law firm to conduct an independent review of the incidents.