The Fairfax County School Board is weighing new regulations that spell out how schools should accommodate transgender students, rules that would affirm the students’ right to use bathrooms and locker rooms that align with their gender identity and direct teachers to refer to them by their preferred pronouns.
The board last year approved a policy barring discrimination against transgender students and staff, a move that spurred vocal protests and a lawsuit from an unnamed student who accused the board of overstepping its authority. While the policy has been on the books for a year, the new proposed regulations, released to board members July 1, would clarify for teachers and administrators their obligations to safeguard the rights of transgender students.
The board votes on policy changes but typically does not weigh in on the regulations that implement them; school system regulations usually go into effect without board approval. But the board chairman, Pat Hynes (Hunter Mill), said the board would have the opportunity to change the proposed regulations if they are presented to the board for consideration. Hynes scheduled a School Board work session for July 21 to discuss the regulations.
Some parents have complained that school system officials have not been transparent enough as they drafted the regulations and have asked for more opportunities to provide input.
“This is a topic that’s very sensitive,” said Meg Kilgannon, who has three children in Fairfax schools. She said she thinks that schoolchildren are too young to be switching genders and that the school system needs to be careful in considering how the policies affect all students. “This is a new area of public debate in our country, and we need to have a debate.”
Those who back the new regulations say they are an extension of the policy passed last year, which already was at the center of heated debate. LGBT advocates say the regulations are an important step in the right direction, a move that could help transgender students feel more comfortable at school and allow them to use bathrooms that align with their gender identity.
“It’ll change the culture in a huge way. Culture is top-down in schools,” said Robert Rigby, a Latin teacher at West Potomac High and an advocate for LGBT students. He said the new regulations also would give clarity to teachers, who might struggle to understand how they should accommodate transgender students. “This will mean a lot to teachers. Teachers will now feel safer accepting their trans kids. . . . This is a big wide neon sign to all administrators and all staff: Accept your trans kids.”
While the regulations have been in the works for more than a year, they represent an effort to navigate the new and complex legal landscape of an issue that has proved deeply polarizing in Fairfax County and across the country. Transgender students say being allowed to use bathrooms that match their gender identity is a critical element of their well-being. But some people worry that allowing transgender students into restrooms that conflict with the sex on their birth certificates is a breach of privacy and traditional values; some argue that it is also a safety risk.
The Obama administration in May directed public schools across the country to allow transgender students to use bathrooms that align with their gender identity and to respect transgender students who wish to be referred to by pronouns or names that differ from their birth certificates. The directive was met with immediate backlash: 21 states have sued to have it overturned.
The U.S. Court of Appeals for the 4th Circuit in April sided with a Virginia transgender student who is suing for the right to use the boys’ bathroom at his high school, saying his lawsuit could move forward. The court also deferred to the Obama administration’s position that bathroom prohibitions for transgender students violate Title IX, which prohibits sex discrimination in public schools.
Hynes, the Fairfax School Board chairman, said the developments might have created new legal obligations for the school system. She added that she thinks Fairfax already was complying with the new policy to not discriminate against transgender students, but the regulations will make the county’s nearly 200 schools more consistent and efficient, she said.
The proposed regulations would give transgender students access to bathrooms and locker rooms that match their gender identities. In classes that are sex-segregated — such as sex education — transgender students would be able to remain with classmates who match their gender identity. The regulations also would give all students the right to request private changing areas, regardless of the reason.
Transgender student athletes are bound by the rules set by the Virginia High School League, which requires transgender competitors to appeal to the organization and provide documentation of their transition if they wish to compete on teams that match their gender identity.
Critics accused the district of moving too hastily and without enough information. Board member Elizabeth Schultz (Springfield) said she wants to see more information on model policies and best practices and to hear from an expert on the matter. She questioned whether it was prudent to require students who feel uncomfortable with a transgender classmate to seek alternate arrangements.
“What we’ve done is shifted the burden . . . to 99 percent of the students,” Schultz said. “What happens if 60 girls in PE want private showers? Now what?”
She called the new regulations “a redefinition of what sex is” — an argument that conservative lawmakers in several states have made in challenging the Obama administration’s guidance on transgender students — and said the board has not given serious consideration to the implications of such a change. She said that the notion that you can “think your sex” runs contrary to science.
“If it’s now no longer a scientific thing and it’s now something a person can change by thought process . . . what are the implications of moving forward with that kind of public policy change?” Schultz said.