CHATHAM, Va. — After the meeting held by the Pittsylvania County School Board July 13, many are confused as to what the outcome or their decision from that night was or what it accomplished. The board voted to reject a 27-page Virginia Department of Education (VDOE) document specifically detailing a model policy protecting transgender students within the public-school system.
In Virginia, state laws and formally passed policies of the state take precedent over any local policy created by a local school board. Superintendent of Pittsylvania County Schools Dr. Mark Jones is in charge of implementing the policies passed by the school board.
Dr. Jones aimed to clarify the terms he and those he manages work under.
“We follow policies developed by school board, policies approved by the school board that are developed at the state level, that are in the code of Virginia through the legislature that are found in the courts,” Jones said. “I’m responsible for implementing the policies that [the board] passes.”
Hank Bostwick is a Virginia licensed lawyer specializing in education and pointed out where some of the legal confusion comes from.
“First, Code of Virginia § 22.1-23.3A provides that the Virginia Department of Education shall promulgate 'model policies' that fit the eight criteria set out in the 2020 legislation. 'Shall' is non-discretionary, mandatory language,” Bostwick said. “Second, and this is the confusion created by the legislature's choice language for the statute, the boards of local school divisions must adopt their own local policies that comport with the 2020 statute's eight criteria.”
Bostwick went on to quote Virginia code, “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, Code of Virginia § 22.1-23.3B.”
Dr. Jones sees this section of Virginia code in a different light.
“In the law it says that school boards must adopt a model policies or policies similar to those. The Virginia School Board Association developed policies similar to those that the board has already approved,” Jones said.
Bostwick emphasized the imprecise language of Virginia’s code, particularly with code’s use of “consistent.”
“The school board's duty to adopt a policy consistent with the eight factors is mandatory, non-discretionary, like again, the use of 'shall,'” Bostwick stated. “But – and this is a big 'but' – what does the phrase consistent with the eight factors mean and isn't consistent a subjective term? While lawyers may argue principals of statutory construction on the public dime, to the average reader, consistent may mean a lot of things.”
Bostwick referred to the court case that inspired the creation of VDOE transgender anti-discrimination policy.
“On June 28, 2021, the United States Supreme Court declined to hear an appeal of the Fourth Circuit's decision in Grimm v. Gloucester County School Board, which means that the decision stands. Fourth Circuit interpreted Title IX and the Equal Protection Clause to prohibit discrimination against transgender students," Bostwick said. "This means that when federal courts in the Fourth Circuit interpret provisions like compliance with applicable nondiscrimination laws in § 22.1-23.3A(1), they must be guided by the decision in Grimm. Fundamentally, students who are transgender must be allowed to use bathrooms that match their gender identities as a result of the Supreme Court's denial of cert, as it were, in Grimm.”
Bostwick concluded with a summary of his findings.
“So, bottom line – school districts in Virginia must do as good as or better than the VDOE's model transgender policies as they now risk running afoul of both state and federal anti-discrimination law.”
Jones assured that the policies made and approved last June are consistent with Virginia’s model transgender protection policy.
“Our school board approved in June a policy developed by the Virginia School Board Association. Those policies indicate that the school board and school division does not discriminate against children,” Jones said. “The board approved policies in June that would meet the requirements.”
As of today, the school board policy is broad and general. It reads, “Equal educational opportunities are available for all students, without regard to sex, sexual orientation, race, creed, color, national origin, gender, gender identity, ethnicity, religion, disability, ancestry, marital or parental status or any other unlawful basis. Educational programs are designed to meet the varying needs of all students.”
While this does act as a blanket nondiscrimination policy, it does not adhere fully to Virginia’s treatment of transgender students’ policies. The current Pittsylvania County Schools policy does not include the implementation of having available facilities such as restrooms and locker rooms for students of non-traditional gender identities. Therefore, the policy the county has now is not completely consistent with what the state has mandated.
If challenged in court, the school would have a hard time defending their decision rejecting acceptance of the 27-page document given to them by the VDOE, Bostwick said.
“Pittsylvania County School Board policy lacks the specifics to survive a court case,” Bostwick said.
Virginia’s deadline for school boards across the state to implement transgender protection policies is this fall.