Home> School Board Considers Update to Policy 1450
Statement from FCPS School Board Chair Tamara Derenak Kaufax:
The decision by the School Board to add "gender identity" to our nondiscrimination policy is to provide an environment which promotes equality where every student and employee is treated with dignity and respect. This tells our students and staff that school and the FCPS workplace are places where they can be safe from harassment and discrimination. The School Board has taken this proactive step to protect our students and staff from discrimination.
On March 4, 2015, Virginia Attorney General Mark Herring said local school boards have the authority under state law to include gender identity in their non-discrimination policies. The U.S. Department of Education has told school districts that transgender students are protected from discrimination under Title IX and has recently required some school districts including Alexandria, Virginia, to amend their policies to expressly include gender identity.
No decisions have yet been made regarding accommodations that will be provided, under the revised policy. Our next step will be to hire a consultant to assist in developing appropriate regulations that protect the rights of all students and comply with state and federal law.
As decisions are made about how best to protect our students and staff from discrimination, we will take great care to protect the rights and to provide for the needs of all students. FCPS will continue to provide the highest quality education for all students in safe and caring school communities.
The Fairfax County School Board is considering a proposal to add "gender identity" to the FCPS non-discrimination policy (Policy 1450).
It is a two-step process. The Board considered the proposal as a "New Business" item at their April 23 meeting with final action scheduled for Thursday, May 7.
If approved, the policy would read:
No student, employee, or applicant for employment in the Fairfax County Public Schools shall, on the basis of age, race, color, sex, sexual orientation, gender identity, religion, national origin, marital status, or disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity, as required by law. It is the express intent of the School Board that every policy, practice, and procedure shall conform to all applicable requirements of federal and state law.
On March 4, 2015, Virginia Attorney General Mark Herring said local school boards have the authority under state law to include gender identity in their non-discrimination policies. No decisions have yet been made regarding accommodations that will be provided, under the new policy. FCPS will hire a consultant to assist in developing appropriate regulations that protect the rights of all students and to comply with state and federal law.
The Office of Civil Rights (OCR) of the U.S. Department of Education is requiring that school divisions 1) revise their non-discrimination policies to include gender identity, and 2) hire a consultant to advise on revisions to regulations and, more generally, how school divisions should handle individual cases of transgender students. If the School Board amends Policy 1450, we will be able to tell them that we have already done the two things that OCR is requiring.
If FCPS refuses to amend its policy, OCR has the right to recommend the termination of federal funding to FCPS. OCR has already investigated the City of Alexandria Public Schools and the Arcadia School District in California. Arcadia and Alexandria both entered into voluntary resolution agreements (VRA) with OCR. Those VRAs required that Alexandria and Arcadia amend their discrimination policies to include "gender identity." We see no reason to conclude that OCR would treat FCPS any differently than it has Arcadia or Alexandria in its requirement to amend the discrimination policy to include "gender identity."
Last year, following the negotiation of the VRA, Alexandria Public Schools amended its policy to expressly include gender identity. Also, Charlottesville Public Schools' non-discrimination policy includes gender identity.
No. At FCPS currently, there is a vetting process that Instructional Services and Department of Special Services go through when a student or his parents claim that the student is transgender, to ensure that the claim is legitimate and made in good faith. That prevents the scenario of a biological male student walking into school on a Monday, claiming he's transgender and identifies as a female, and being allowed to use the girl's bathroom immediately. That process will continue if Policy 1450 is amended.
In guidance documents issued recently, the Office of Civil Rights (OCR) has advised that it considers transgender students to be protected from sex-based discrimination under Title IX. Also, OCR investigated the Arcadia School District in California when that district did not allow a transgender student who identified as male to use the boy's bathroom. Prior to the OCR investigation, Arcadia required the transgender student to use a separate bathroom in the school nurse's office as a restroom and to dress out for gym. While the investigation was pending, the student completed his transition to living as a male and had his birth certificate formally changed to state that he was a male. OCR and Arcadia then entered into a voluntary resolution agreement (VRA) that provided that the specific transgender student would be allowed to use the boy's bathroom.
The VRA did not resolve the issue of whether Arcadia violated federal law when it required the transgender student to use the separate nurse's bathroom, and the VRA did not require Arcadia to adopt a policy that would allow all transgender students to use the bathroom of their choice in the future. Apart from the one student at issue, all other decisions for students are on a case by case basis. The request from the student at issue was supported by evidence showing that medical providers considered the bathroom use to be "consistent with medically appropriate standards of care."
OCR defines a transgender student for purposes of the VRA as "a student who consistently and uniformly asserts a gender identity different than the student's assigned sex, or for which there is documented legal or medical evidence that the gender identity is sincerely held as part of the student's core identity." Relying on that definition, a person would not be entitled to use the bathroom matching their gender expression on Day 1 of their decision to start expressing a different gender.
We will work with the teacher, Human Resources, and Division Counsel on a plan for that teacher. The teacher would not be allowed to immediately use the bathroom of their choice. As a practical matter, nearly all faculty bathrooms in our schools are single-stall bathrooms such that only one person at a time may use them.
On March 4, 2015, the Virginia Attorney General overruled the previous AG opinion in this matter and concluded that school boards do have Dillon Rule authority to adopt policies banning discrimination based on sexual orientation and gender identity.
May 7, 2015