Tuesday, October 26, 2021

What Is Gloucester County, Virginia Public Schools' Transgender Policy?

 Let’s dissect what our School Board has done about implementing transgender policies. They appear to have attempted to encapsulate the policies within the GCPS nondiscrimination policy which states:

“The Gloucester County School Board is committed to non-discrimination with regard to sex, sexual orientation, gender, gender identity, race, color, national origin, disability, religion, ancestry, age, marital status, pregnancy, childbirth or related medical conditions, military status, genetic information or any other characteristic protected by law.  This commitment prevails in all of its policies and practices concerning staff, students, educational programs and services, and individuals and entities with whom the Board does business.”

The problem is, there are no written details pertaining to Virginia law mandated transgender policies within the the School Board's nondiscrimination policy. During the October 27th Special Work Session, Superintendent Clemons presented a slide with five GCPS policy numbers. His assertion was they were the policies the School Board has adopted as a result of new Virginia law. He only showed the content of the Nondiscrimination Policy and said we could look the other four up on the GCPS website. Well I did and all five of the policies are presented below for your reading. What you will find is a big fat nothing burger. There are no written policies pertaining to restrooms, showers, locker rooms, overnight accommodations or numerous other areas that should have written policies in order to be consistent with the "model policy" mandated by Virginia law. Here is what §22.1-23.3 of the Code of Virginia states:

A. The Department of Education shall develop and make 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 and include information, guidance, procedures, and standards relating to:

1. Compliance with applicable nondiscrimination laws;

2. Maintenance of a safe and supportive learning environment free from discrimination and harassment for all students;

3. Prevention of and response to bullying and harassment;

4. Maintenance of student records;

5. Identification of students;

6. Protection of student privacy and the confidentiality of sensitive information;

7. Enforcement of sex-based dress codes; and

8. Student participation in sex-specific school activities and events and use of school facilities. Activities and events do not include athletics.

B. Each school board shall adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education pursuant to subsection A.

We see the law directs the Virginia Department of Education to create model policies for all public elementary and secondary schools and we see the wide ranging list of areas VDOE was directed to incorporate during the creation of the “model policy”. We also see each School Board is required to adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.

Next, we must consider the content of VDOE's Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools. Within those policies it states in part:

“Whenever schools provide gender-specific activities such as physical education classes, students should be allowed to participate in a manner consistent with their gender identity. Students have the right to equitable access to programs, activities, and events that include but are not limited to acknowledgements, dances, assemblies, after-school programs, extracurricular activities, intramurals, non-competitive sports leagues, and field trips. For overnight field trips, the school should not force the student into single-occupancy accommodations that are not required for other students; however, such alternative accommodations should be made available to any student requesting them. It is important that school divisions adopt policies and procedures that are focused on the safety of all students and seek to address privacy interests in situations involving individuals undressing or showering. School divisions should ensure that all students who participate in extracurricular activities that involve overnight trips are aware of the school’s policies and options available to them in advance.”

As we see, that part of the “model policy” does in fact allow transgender students to share overnight accommodations, locker rooms and showers with persons of the gender the transgender identifies as. We also see that individual students can opt out of sharing and should be afforded alternative accommodations and facilities. We also see where school divisions are charged with adopting policies and procedures that are focused on the privacy of "all" students and seek to address privacy interests in situations involving individuals undressing or showering. It has become quite evident from the October 27th Special Work Session and other School Board meetings, our School Board has failed to do this and has silenced Mr. Post whenever he has tried to initiate public discussions about it, other than to repeatedly say it was discussed at their retreat or in secret meetings with lawyers. How do we know what was discussed at the retreat when it was not broadcast or recorded and as for the secret lawyer meetings, that excuse for lack of transparency became old several years ago?

We also see the requirement for school divisions to “ensure that all students who participate in extracurricular activities that involve overnight trips are aware of the school’s policies and options available to them in advance.” Where are the written policies? What about informing the parents? Here too our school board has failed us by not providing written policies in this area and by once again, forgetting about the parents of the children.

Here is what the “model policy’ says on transgender access to facilities:

“All students are entitled to have access to restrooms, locker rooms, and changing facilities that are sanitary, safe, and adequate, so that they can comfortably and fully engage in their school programs and activities. Schools frequently maintain separate restrooms, locker rooms or other facilities for males and females. Students should be allowed to use the facility that corresponds to their gender identity. While some transgender students will want that access, others may want alternatives that afford more privacy. Taking into account existing school facilities, administrators should take steps to designate gender-inclusive or single-user restrooms commensurate with the size of the school. When schools have available gender-inclusive or single-user restrooms or private changing areas, these restrooms or areas should be accessible to all students without special codes or keys. This would allow for any students seeking privacy to access single-user restrooms and private changing areas voluntarily. For locker room facilities without private changing areas, school divisions should make reasonable accommodations for requests for increased privacy. At the request of any student, schools should offer alternative arrangements such as a separate changing schedule, use of a nearby private area, access to a staff member’s office, not requiring students to dress in uniform for physical education, or offering alternatives to in-person physical education. Any accommodations offered should be non-stigmatizing and minimize lost instructional time. Also, note that any information related to accommodations should be handled in such a way as to protect the student’s privacy relating to their gender identity.”

The “model policy” further states:

“It can be emotionally harmful for a transgender student to be questioned regarding the use of restrooms and facilities. School staff should not confront students about their gender identity upon entry into the restroom. Furthermore, as school divisions plan for new school facilities or renovations, they should consider generally accommodating students who want more privacy such as designing additional single-user or gender-inclusive restrooms or changing areas. Additionally, § 22.1-6.1 of the Code of Virginia requires each school board to make menstrual supplies available at all times and at no cost to students in accessible locations in each elementary school and in the bathrooms of each middle and high school. Accordingly, these supplies should be made available in all bathrooms to be gender-inclusive.”

During the Special Work Session, Superintendent Clemons said they would handle each transgender case on a case by case basis in determining what the rules will be. Well, this part of the "model policy" seems to suggest otherwise and is a great example of why written policies need to be created and adopted. The details of GCPS policies pertaining to this area are not spelled out or described as would be done if our School Board were being completely transparent and truthful and were sincerely concerned about the privacy of every student, as was their repeated claim during the work session. 

Our School Board has also failed to develop written policies that will “generally accommodate students who want more privacy” while permanent solutions are designed and built. They have acquired estimates on restroom designs, but we have not seen or heard anything about locker rooms and showers or how privacy concerns will be handled until design and construction are complete. What we have heard is School Board member Troy Andersen asking to drag out restroom renovations over several years without offering the first suggestion on what to do about privacy for "all" students in the meantime. There are no written policies covering any of this. 

On July 30, 2021 the VDOE Superintendent released Memo #202-21 which states in part:

“With respect to content of local policies, VDOE’s model policies extend beyond just compliance with nondiscrimination laws to cover matters related to student records, student privacy, bullying and harassment, dress codes, and participation in school activities, among others. These topics were statutorily mandated to be included in the VDOE guidance. Therefore, nondiscrimination policies alone may be insufficient to meet the full scope of this legal mandate.”  

As we can see, encapsulating transgender policy in nondiscrimination policies alone is not considered adequate by VDOE. By ignoring VDOE and following the encapsulation path, our School Board is ignoring the privacy rights of "all" students except those who identify as transgender. Even the “model policy” allows for the preservation of privacy for "all" students. During the Special Work Session, Troy Andersen said something to the effect of, the School Board not adopting the "model policy" as a whole because they disagree with parts of it. That statement in itself demonstrates the School Board's written policies are not consistent with or more comprehensive than the "model policy", leaving us open for more potential lawsuits.

So far it appears the “model policy” does have some good aspects, but there is at least one part of the policy that appears to conflict with §1-240.1 of the Code of Virginia which states in its entirety:

“A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child.”

The model policy states in part:

“School divisions will need to consider the health and safety of the student in situations where students may not want their parents to know about their gender identity, and schools should address this on a case-by-case basis. If a student is not ready or able to safely share with their family about their gender identity, this should be respected. 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 the information with their family when they are ready to do so. Refer to additional discussions regarding when parents are aware of but are not affirming of the student’s gender identity in the next section.”

It further states in part:

“School divisions should accept a student’s assertion of their gender identity without requiring any particular substantiating evidence, including diagnosis, treatment, or legal documents. A student is considered transgender if, at school, the student consistently asserts a gender identity different from the sex assigned at birth.”

It further states in part:

In the situation when parents or guardians of a minor student (under 18 years of age) do not agree with the student’s request to adopt a new name and pronouns, school divisions will need to determine whether to respect the student’s request, abide by the parent’s wishes to continue using the student’s legal name and sex assigned at birth, or develop an alternative that respects both the student and the parents. This process will require consideration of short-term solutions to address the student’s emotional needs to be affirmed at school as well as the long-term goal of assisting the family in developing solutions in their child’s best interest. For example, a plan may include addressing the student at school with their name and pronoun consistent with their gender identity while using the legal name and pronoun associated with the sex assigned at birth when communicating with parents or guardians.”

These sections of the “model policy” certainly appear to violate parents’ rights in the Commonwealth of Virginia. However, whether we agree with them or not, the fact remains, this is another area of noncompliance with Virginia law and that is not consistent with the "model policy". The School Board has not presented any written policies that address any of this. How are parents, students, teachers and staff supposed to know what the rules are if there are no written rules to go by? 

Now let’s look at the process to create the “model policy”. Most believe a group of people got together and made up their own rules in secret without input from the People, but that is not the case. On December 18, 2020, the VDOE Superintendent published a memo titled, “Public Comments for the Proposed Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools.” The memo states in part:

“The VDOE is soliciting public comments on the Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools. The proposed guidance and model policies will be available on Virginia Regulatory Town Hall Public Comment Forums, and comments can be made online from January 4, 2021 - February 3, 2021.”

We elect our School Board to supervise our public schools in Gloucester. Broadly informing the community about things like this should be a natural element of supervising our school district. I would like to know how many School Board members have subscribed to VDOE’s mailing list and how many VDOE announcements and memos the Superintendent shares with teachers and staff. I know he gets them from FOIA request responses. Notifications were sent to subscribers every step of the way in creating the “model policy". The same is true through every step of the creation of EdEquityVa and Social Emotional Learning and other controversial programs, yet we heard nothing about committees being formed, public comment opportunities and much more. This is another failure of our School Board. Like a military service member said at a recent board meeting, while he is away looking out for and protecting all of us, he must have faith that our School Board is looking out for and protecting his children. Every parent expects the same thing when they send their children off to school.

Below you will find SlideShare presentations of or links to all the documents, policies and laws mentioned herein. Read them and come to your own conclusion.

Written By: Kenny Hogge, Sr.

Link To §22.1-23.3 of the Code of Virginia. https://law.lis.virginia.gov/vacode/22.1-23.3

Link To §1-240.1 of the Code of Virginia. https://law.lis.virginia.gov/vacode/title1/chapter2.1/section1-240.1/

GCPS Policy AC nondiscrimination.

VDOE's Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools

VDOE Superintendent Memo #202-21

VDOE Superintendent memo titled, “Public Comments for the Proposed Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools

GCPS Policy JFHA Harassment and Retaliation

GCPS Policy JB Harassment and Retaliation

GCPS Policy GBA Harassment and Retaliation

GCPS Policy GB Harassment and Retaliation

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