"I was disappointed but not surprised," 10th-grader Gavin Grimm told BuzzFeed News after members of his school board in Gloucester County voted Tuesday evening to prohibit transgender students from using restrooms that do not correspond to their "biological genders." The measure passed in a 6-1 vote after a standing room-only debate.
The measure appears specifically aimed at Grimm, a transgender boy at the district's sole high school, where teachers had allowed him to use the boys' restrooms without incident starting in October.
But after an outcry from some parents and conservative groups in this rural county of 37,000 residents, Grimm will be banned under the new policy, which limits male and female bathrooms to people with "corresponding biological genders." The policy adds that "students with gender identity issues" may use an alternative private facility, such as a staff or unisex bathroom. "It wasn't fair. It was discrimination, and I'm not pleased with the outcome," Grimm said after the vote.
The policy appears ripe for legal retaliation, according to a sternly worded letter that the American Civil Liberties Union sent to the school district on Dec. 4 warning the rule would violate Title IX, which bans gender-based discrimination in public education facilities. Citing a slew of court decisions and federal education guidelines, the ACLU pointed out that other school districts violating Title IX rights of transgender students have been forced into settlements. In Maine last week, a court ordered a school district to pay $75,000 for requiring a transgender student to use a staff bathroom.
"I truly believe we are in violation of Title IX and at risk of losing our federal funding," school board member Kimberly Hensley, who is also an attorney, told BuzzFeed News. "When a school district accepts federal funds, it does so on the condition of following federal laws."
The only board member to vote against the policy, Hensley said federal money pays for school meal programs, reading programs, special education, and more in Gloucester County. "I don't want to risk losing these programs." When it comes to transgender students, she explained, the vote was the "wrong decision. It is important for us to provide equal access and support all of our students."
In other battles this fall — such as those in Cleveland; Miami-Dade County, Florida; and Minnesota — conservative groups mounted robust, though ultimately unsuccessful, campaigns that argued transgender rights policies put religious freedom, safety, and privacy at risk.
Virginia parents at a school board meeting in November echoed those concerns.
"Overwhelmingly, parents expressed fear that allowing a transgender student to use their gender-identified bathrooms would somehow violate other students' privacy," Hensley said. Parents also showed concern, she said, that "transgender students would be looking at other people's private parts, especially in boys bathrooms."
Hensely recalled there was "no discussion about this" among the school board until they heard "complaints from parents" about Grimm using the boys bathroom. She said conservative national groups also sent the board letters.
In contrast, Hensley says students themselves did not seem to care if Grimm used the boys bathroom.
"I am hearing students say this is not important to us," Hensley said. She had not surveyed all students, but Hensley characterized their comments like this: "We don't care, we are more accepting, and you can be whoever you are and that's fine. I just go to the bathroom and go back to class. It's not something I spend a lot of time caring about."
Joshua Block, a staff attorney for the ACLU, which is representing Grimm, told BuzzFeed News, "These sort of polices are extremely stigmatizing and harmful to kids. They single out transgender kids out as being different and excludes them from a regular part of day-to-day life by requiring them to travel long distances to use a gender-neutral restroom in the nurse's office or somewhere else."
Block continued, "What it looks like is happening in Gloucester County, which we have seen in other places too, is that you have outside parents or school board officials parachuting in and claiming that there is some sort of privacy concern or disruption that, in fact, doesn't exist."
"It's pretty shameful to see this kind of hysteria focused on just one teenage kid," said Block. "From what we know, it appears this policy is being proposed as a direct response to this student. This person has been able to use the bathroom without any problem — not a problem for him, his peers, his teachers, or anyone in the school community."
ACLU lawyers will consult with Grimm to decide whether to pursue legal action. Block said, "It is clear that the Department of Education is ready, willing, and able to receive complaints for violations of Title IX for exactly this fact pattern."
BuzzFeed News contacted all of the other school board members seeking comment, but none replied.