Ember is a 16-year-old student in Hanover County public schools. He likes his English, art and theater classes, and he picked up horseback riding in recent months.
“I like working with animals,” he says, shifting in his seat at a bustling coffee shop about 20 miles north of Richmond. “I think the bond you’re able to have with an animal is really special.”
Ember - we’re only using his first name because of concerns for his safety - is also transgender. He started transitioning a few years ago, and found support from most of his teachers and administration when he came back to school after the COVID-19 pandemic.
But that changed last spring when the county’s conservative majority passed one of the most restrictive policies for transgender students in the state.
The policy not only requires the school division to report any student who’s asking to go by a different gender, it also has a long, evidence-intensive process which ends with school board approval if a trans student needs to use the bathroom aligned with their gender.
“I’d like to say I feel safe in school but I honestly don’t think I do a lot of the time,” he says.
Hanover County’s policy was instituted even before Governor Glenn Youngkin’s Department of Education sent down new guidance for transgender students in public schools. Part of his “Parents Matter” campaign, Youngkin promised his policy would create safety and privacy for all students, but instead folks like Ember feel left out.
While a few local school divisions have since adopted what Youngkin offered, more are expected to pass guidelines for trans students in the near future.
The Alliance Defending Freedom is a Christian legal advocacy group that’s been at the forefront of the fight of religious freedom versus LGBTQ rights for years. Tyson Langhofer, Senior Counsel with the group, defended Youngkin’s policy in an interview saying it was “designed to approach and protect everyone’s privacy and give all students access to locker rooms, restrooms and shower facilities to protect everyone’s privacy and give parents a say in how their students are accessing those restrooms.”
The Governor’s policy says students must use bathrooms aligned with their “biological sex,” but the policy notes that school boards must also comply to the extent that quote “federal law otherwise requires.”
And while Langhofer said he believes federal law allows for the segregation of bathrooms based on sex in a way that may single out certain students, he admitted the existence of Grimm v. Gloucester County could create hurdles when blocking transgender kids’ bathroom use.
“To the extent that another student is able to demonstrate a similar situation to Grimm, then Gimm may apply to give that student a different outcome as it relates to the policy,” he said.
Wyatt Rolla, the ACLU of Virginia’s senior transgender rights attorney, also picked up on this disconnect.
“The model policy style Grimm as an exception to its general policy position, that restroom access should be based on biological sex, which is in direct conflict to its direct holding,” Rolla said in an interview.
Grimm v. Gloucester County, decided by the Fourth Circuit court of Appeals in 2020, found “transgender students face unique challenges” including higher levels of bullying and suicide. Judges also noted “using the school restrooms matching their gender identity is one way that transgender students can affirm their gender and socially transition.”
Back in 2015, Gloucester County had passed a policy which blocked transgender male Gavin Grimm from using the restroom aligned with his birth gender, but the court found that policy was quote “marked by misconception and prejudice.” In addition to providing no proof that trans or cisgender kids were using inclusive policies to sexually abuse fellow students, they noted Grimm was using the boys bathroom for 7 weeks without incident before the policy kicked in.
Federal Appeals courts agreed in a similar case out of Pennsylvania around the same time, and the U.S. Supreme Court refused to hear an appeal from Gloucester in 2020, ending the dispute for a time.
But the Atlanta-based 11th Circuit Court of Appeals found otherwise late last year. Echoing many of ADF’s claims, they found federal law allows the segregation of sexes in schools based on “biological sex”, and that quote “[federal law] prohibits discrimination on the basis of
sex, but it expressly permits separating the sexes when it comes to bathrooms and other living facilities.”
The split decisions may lead to the nation’s highest court to step in where it hasn’t in the past.
But all this legal jargon was missing from an otherwise quiet Gloucester County School Board meeting this week.
These meetings weren’t always this quiet. Following Grimm’s win, the conservative Darren Post was elected to a seat on the board. He claimed on social media policies supporting transgender kids quote “put our children’s safety at risk. At risk of rape, sexual assault, false allegations, and child pornography,” and what followed was hate-fueled school board meetings, including one which saw four people arrested for bringing guns to the meeting this summer.
Post made few friends on the school board in the wake of the disruptions, and he secretly recorded other members in a closed meeting calling him “an absolutely pathetic human being.” But he lost his election this year and is set to be replaced by a former sheriff who Gloucester County School Board Chair Troy Andersen said will hopefully be less incendiary.
“The goal is to make school board meetings boring again and I’m all about that,” Andersen said.
And while the school board passed Youngkin’s policy unanimously, Andersen’s face scrunched up when asked what he would tell a transgender student who needed to use the bathroom. And he was more unsure what would happen if his school board faced another legal challenge.
“I don’t think we’ve ever been told as clearly as ‘they would represent us,’ but they’ve told us it's clear the model policies are legal and should be implemented by all school boards,” he said.
Requests for comment sent to Youngkin’s office, and Attorney General Jason Miyares, were not returned. But Rolla, who said they’d already heard from transgender and nonbinary students who’d been impacted, argued the confusion is a disaster waiting to happen.
“The Youngkin Department of Education is really throwing school boards under the bus to advance their own anti-trans agenda,” they said.
And future fights may not only come from trans kids, there are also teachers who profess their religious beliefs trump the requests of parents. Youngkin’s policy addresses that too, noting, even if a parent says their child is transgender, the school division quote “shall not compel… personnel or other students to address or refer to students in any manner that would violate their constitutionally protected rights.”
There’s currently a case before the Supreme Court of Virginia aiming to devine what’s more important, respecting a transgender student’s identity or the religious rights of teachers to ignore such a request.
“It turns out some rights are more equal than others,” scoffed John F. Cafferky, a partner at law firm Blankingship & Keith. Cafferky is a lawyer for several northern Virginia school boards. He’s defended them in recent fights over school masking and covid-era closures, even as Youngkin cried foul.
He said recent power grabs by the governor are nothing new, and the courts have long dispatched them under the state’s constitution.
In the wake of Massive Resistance, which saw Virginia’s school systems close instead of desegregate, the state passed a new constitution requiring education access, but also giving broad power to school boards. This came after the legislature tried to withhold funds from local school boards that wanted to integrate, Cafferky said.
And more recently, he said, when former Governor Ralph Northam passed a model policy which supported transgender students, a state court dismissed claims from parents which tried to block a school board’s implementation of the policy. The judge found Northam’s work was merely a guidance document and the parents perceived future injury wasn’t enough to sustain their claims.
“That’s part of the significant problem with the statutes, the trans policy, is that they usurp the authority of local school boards to make these kinds of decisions,” Cafferky said. “It was no more constitutional during the Northam admin than it is now.”
But back in Gloucester, the school board is also trying other options, including building a new high school with only single stall restrooms the students will share regardless of gender.
“You get decreased vandalism because you’ll know who was in there last, and you increase the safety and security of all students,” Andersen said.
Meanwhile, at the coffee shop in Hanover, Ember is tired of the fight. And he’s got a question for those who think they need to be protected from folks like him:
“Why do they care? You can care in your own time,” he said. “I complain about other people in my free time, but just because they do something that annoys me, I'm not going to bring that up them.”
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
