Clay County schools won’t follow Obama transgender directive

Ryan Quinn , Staff Writer

The leaders of West Virginia’s Clay County public school system say their schools won’t follow the Obama administration’s directive to allow transgender students to use the bathrooms and locker rooms that correspond with their gender identity.

“I am writing on behalf of the Clay County Board of Education, to inform you that ‘the sharing of school bathrooms, locker rooms, and showers by boys and girls, at the same time,’ in no way protects the privacy rights of all students,” Clay Superintendent Kenneth Tanner wrote in a letter dated May 20 and addressed to students, parents and staff.

“To allow such a thing would be an obvious violation of students’ right to privacy, students’ moral and ethical beliefs and values, and students’ religious beliefs and values,” Tanner wrote. “All Clay County Schools principals have been instructed not to allow this in any of our school facilities, and they have all welcomed this instruction.”

West Virginia School Board Association Executive Director Howard O’Cull and David Banks, who is president of the West Virginia Association of School Administrators and superintendent of Morgan County Schools, said Clay is the first West Virginia school system they’ve heard of to publicly state that it would not follow the federal directive.

Tanner, who wrote “May God bless you and your family” in the last line of his letter, said transgender students in his roughly 2,000-student system would be offered private bathrooms if they didn’t want to use the restroom that corresponds with the sex they were born with. But while the federal government says transgender students can be offered “individual-user facilities,” they can’t be forced to use them when other students aren’t required to do so, nor can they be forced to use a bathroom inconsistent with their gender identity.

“[Title IX] and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance,” stated a letter the U.S. Education and Justice departments sent last month to school districts nationwide. “This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”

The departments wrote that their legal interpretations — including that “a school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity” — are consistent with courts’ and other agencies’ interpretations.

The federal letter states that Title IX must be followed “even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.”

Tanner said that alongside his letter, he forwarded recipients the letter that West Virginia Attorney General Patrick Morrisey sent last month calling the federal government’s interpretation unlawful. Tanner’s letter also quotes from Morrisey’s letter, which the attorney general sent to school boards across the state.

Banks said his own, 2,300-student Morgan County school system doesn’t have a policy on whether transgender students can use the bathrooms that match their gender identity, saying the issue has never arisen there. He said Morgan County isn’t moving forward with developing a policy because of the continuing disagreement between Morrisey and the federal government.

Jeff Martin, interim executive director of the American Civil Liberties Union of West Virginia, said he didn’t know about Clay’s stance and hadn’t heard of any other Mountain State school systems that have publicly said they’re not going to follow the federal directive. His organization is sending its own guidance letters to school systems this week.

“The use of restrooms does not entail exposure to nudity, and locker rooms can provide curtains and other measures to ensure privacy,” the guidance states. “To the extent any student feels uncomfortable using a facility — because of modesty, embarrassment, discomfort with the presence of a transgender student, or for any other reason — private facilities can be made available for them to use if they choose.

“But what schools cannot do is force transgender students to use separate facilities because some people might feel uncomfortable with them,” the letter continues. “This, the Equal Protection Clause does not permit. None of this is changed by the letter your school received from Attorney General Morrisey or the lawsuit that he is currently a part of. With the Fourth Circuit’s recent decision not to hold a rehearing in G.G., its opinion on the [U.S. Education Department] guidance remains binding.”

On April 19, a three-judge panel of the Fourth U.S. Circuit Court of Appeals ruled in favor of transgender teenager Gavin Grimm — referred to as G.G. in the case — who wanted to use the boys’ restroom at his Virginia high school. That ruling set precedent for West Virginia, which also is part of the Fourth Circuit.

Last week, the Fourth Circuit denied a request by Morrisey and officials from other states for all 15 of the court’s judges to rehear the case, and the case is now likely headed to the U.S. Supreme Court.

Morrisey also has filed a lawsuit — alongside Maine’s governor and attorneys general from nine other states — against the Obama administration over its Title IX letter.

Tanner said there was no official vote from Clay’s school board on sending his county’s letter out, but he said he spoke with each member individually and they all agreed. He said about a dozen parents said they were going to pull their children out of Clay schools over the federal directive but they’re not now because Clay doesn’t intend to follow it.

He called the threat of losing federal funding for not following the federal government’s interpretation a “mockery to the poor children of this county.”

“It is an outrage,” Tanner said of the federal directive.

Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.