Henrico Schools' policies on transgender students differ from state guidance

By law, all Virginia school divisions must adopt policies regarding the treatment of transgender students that are in alignment with model policies developed by the Virginia Department of Education.

Some school divisions have adopted the VDOE policies word for word, while some have rejected altogether the implementation of policies that would protect transgender students.

The Henrico School Board did not adopt the model policies, but rather revised its existing policies to include some of the VDOE language. However the revisions didn’t include key parts outlined by the state education department.

One model policy from the VDOE states: “Access to facilities such as restrooms and locker rooms that correspond to a student’s gender identity shall be available to all students.”

Henrico County Public Schools has no policy that addresses access to facilities. School officials said that the school division’s practices reflect the VDOE model policy, and all students are able to use restrooms that align with their gender identity.

But an ACLU of Virginia official told the Citizen that's not enough.

“They have to adopt actual, formal policies,” said Eden Heilman, legal director of the ACLU of Virginia. “I think one of the reasons why the policies are so important is because it also helps provide guidance to families and to kids. Without that, a kid may not know whether their school would be willing to allow them to use facilities in line with their gender identity, and it puts kids in a really precarious position.”

School officials implied that a line in a revised policy regarding extracurricular activities which states that “schools can work to meet the needs of students on a case-by-case basis,” covers the model policy regarding access to facilities. However, that policy does not mention facilities.

Other discrepancies between state, local policies

HCPS does not have a policy related to another model policy of the state, which reads: “School staff shall, at the request of a student or parent, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity.”

The state education department’s guidance also states that if a student is not ready or able to safely share with their family about their transgender status, this should be respected. There are no state 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.

One of Henrico’s new policies states that students may opt to participate in gender-specific curriculum-based school programs based on their gender identity “with parents’/legal guardians’ written consent.”

Another Henrico policy states that schools shall change a student’s name and gender designation on official records — upon the request of a parent/legal guardian. In contrast, the state’s model policy regarding record keeping states “upon request of a student or parent.”

“We certainly discourage any school district from unnecessarily disclosing confidential information about a student to a parent,” Heilman said. “[The Family Education Rights and Privacy Act] is pretty explicit about the idea that disclosing a student’s confidential information, including potentially their gender identity, would be in violation of those issues or those laws.”

At a school board meeting on Thursday, Vice Chair Marcie Shea said she wanted to “publicly clarify” that the policies being voted on were not the state’s model policies, and the revisions to Henrico’s policy do not usurp parental authority.

According to the VDOE guidance, “privacy and confidentiality are critical for transgender students who do not have supportive families. Disclosing a student’s gender identity can pose imminent safety risks, such as losing family support or housing.”

A clause regarding parental consent is not included in Henrico’s revised policy, which allows students to participate in school programs, events or activities (excluding all secondary athletics) that are segregated by gender in a manner consistent with their gender identity.

The legislation that was passed during last year’s General Assembly session requires local school boards to adopt policies by the first day of school that are “consistent with” or “more comprehensive than” the VDOE model policies.

“We decided that there were some things we didn’t feel comfortable with in the VDOE policy,” said Henrico School Board member Michelle Ogburn (Three Chopt District), who sits on the policy committee. “We felt like we would rather take the policies that we have and incorporate them in with what we do.”

The Henrico School Board voted unanimously at its Aug. 26 meeting to approve revisions.

HCPS officials: Local policies are 'consistent' with state's

Like all mandates on local school boards resulting from General Assembly action, it’s up to individual school boards and their legal counsel to ensure their policies are in compliance with state law. State Superintendent James Lane wrote in a memo that local school boards that choose not to adopt policies assume all legal responsibility for noncompliance. Although no state funding is tied to the legislative mandate, noncompliance could be costly for local school boards due to civil litigation or other associated liabilities, according to Lane.

VDOE officials don’t publicly address the specifics of any one school division.

“We don’t know this, but there may be other state agencies that could (enforce the law),” Heilman said. “For example, the Attorney General’s Office potentially could investigate this and decide to come down and put pressure or additional measures against school districts that fail compliance with the law. Certainly parents can challenge it a number of ways, both in state court and then also based purely on the decision itself.”

Despite the differences between Henrico County Public Schools’ new policies and the state’s guidance, Henrico school officials contend that local policies are consistent with the VDOE policies.

HCPS spokesman Andy Jenks said that the school division is meeting the expectation of the law, and Ogburn concurred.

“The law says our policy has to be consistent. . . That word ‘consistent’ is the key word,” Ogburn said. “We just felt like at the policy committee, that there were some things that we were comfortable with tackling right now and there were some things that we weren’t. So we’ve adapted these six, and leave it at that.”