Another Virginia school board has declined to move forward with policies that would affirm protections for LGBT students or employees, citing the unsettled law and changes President Trump’s administration could bring.
The school system is the third in Northern Virginia to delay or decline to add LGBT protections, pointing to pending litigation that has left the law unclear, including a lawsuit before the U.S. Supreme Court in which a transgender boy sued a Virginia school board for the right to use the boys’ bathroom. Another case, which the Virginia Supreme Court is slated to hear, challenges a Fairfax County School Board decision to add gender identity and sexual orientation to its nondiscrimination policy.
The Fairfax County School Board halted an effort to add regulations to its anti-discrimination policy in July to sort out legal issues regarding the regulations. The Prince William County School Board voted in September to postpone a vote on a measure to extend protections to transgender students and staff until June 2017.
The two proposals voted down in Loudoun included one that would have amended the equal employment opportunity policy, spelling out that the school system does not discriminate against qualified job applicants on the basis of sexual orientation and gender identity. A second would have added language to the school system’s anti-harassment policy for employees, specifying that employees are barred from harassing their colleagues on the basis of sexual orientation and gender identity. Five of nine board members opposed the first proposal; six of nine opposed the second.
Instead, the board voted unanimously to add language to its equal employment opportunity policy, emphasizing that it “values merit and excellence in its workforce” and “encourages diversity in its workforce.”
School board members in support of the proposals said LGBT employees in the D.C. suburb sometimes worry about coming out to their colleagues for fear of retribution and that the language would assure those interested in teaching in the district that they would not face discrimination.
“They can’t have pictures of their spouses and their families on their desk because of fear of retaliation and retribution,” said Brenda Sheridan (Sterling), the board’s vice chairwoman. “It is about assuring that when people come to work they are safe and protected.”
But opponents of the measure are skeptical that gay and transgender employees face discrimination and wondered about the necessity of the policy.
“We’re not living in the 1950s,” said board chairman Jeff Morse (Dulles). “Our society has become very much more accepting of all people, of all nationalities, of all creeds.”
Board member Eric DeKenipp (Catoctin) said he worries that the protections could lead the school district to allow transgender students to use bathrooms and locker rooms that align with their gender identity, which he believes is a violation of student privacy.
He cautioned that the Trump administration could remove guidance issued by the Obama administration, like the “Dear Colleague” letter issued in 2016 that clarified that Title IX protects transgender students from bullying. That letter was used to justify the proposed changes.
“The reality is we have a new secretary of education coming in, and this policy or this ‘Dear Colleague’ letter is likely to be rescinded in the near term, when the new administration comes into office,” DeKenipp said.
Other board members believe the board lacks the authority to extend the protection, despite an opinion issued by state Attorney General Mark R. Herring (D) in 2015, which explicitly gave school boards the authority to add sexual orientation and gender identity to their nondiscrimination policies. The lawsuit against Fairfax County Public Schools is challenging that position.
Board members fear that adopting the policies could open the board up to lawsuits. DeKenipp said the board should “punt and delay our policies until the Supreme Court decisions are made.”
“We will end up in court for exceeding our authority,” he said.
Board member Joy Maloney (Broad Run) said she hopes to see the school board take a stand in favor of protecting transgender and gay employees.
“We need people to stand up, not to punt, as allies,” Maloney said.
