Marion restricts transgender students’ bathroom access

Ryan Quinn , Staff Writer

Marion County’s public schools superintendent now says transgender students in his county aren’t allowed to use the bathrooms, locker rooms and overnight accommodations matching their gender identity, adding Marion to the three other West Virginia counties — Calhoun, Clay and Doddridge — whose superintendents have publicly said they won’t allow access.

Marion Superintendent Gary Price declined to say whether his decision would affect any current transgender students in his school system, whose slogan on its website is “It’s what’s inside that counts.” Last month, he declined to tell the Gazette-Mail whether transgender students would be denied access to bathrooms and other accommodations matching their gender identities in his county, saying Marion has such a small number of transgender students that answering could accidentally identify them.

Marion Superintendent Gary Price declined to say whether his decision would affect any current transgender students in his school system, whose slogan on its website is “It’s what’s inside that counts.” Last month, he declined to tell the Gazette-Mail whether transgender students would be denied access to bathrooms and other accommodations matching their gender identities in his county, saying Marion has such a small number of transgender students that answering could accidentally identify them.

In late August, the Gazette-Mail reported that superintendents in 48 of the state’s 55 counties, each of which has a single county-wide public school system, either wouldn’t provide a clear answer on whether they would deny transgender students the right to use the accommodations that match their gender identities, or didn’t respond to the Gazette-Mail’s calls.

The state Board of Education, whose employees have declined to comment on whether an already existing statewide policy gives transgender students such a right, has not discussed the issue in recent meetings. State board President Mike Green said “we’ll have to take that under advisement” when asked if he’d be willing to put an item to take a stance on a meeting agenda — he gives final approval for such agendas — and declined to state his personal views on whether transgender students should be given the right.

“I don’t want to make a public comment about my personal feelings about this particular issue, it’s a controversial issue, we will follow the law,” Green said.

Four superintendents — those of Hardy, Logan, Preston and Upshur counties — told the Gazette-Mail for the August story that they planned to comply with the federal guidance. Following the publication of that story and a Texas federal judge’s issuing of a nationwide preliminary injunction blocking the guidance, the Gazette-Mail again contacted those four superintendents.

Hardy Superintendent Matthew Dotson said Saturday that he would continue to follow the 4th U.S. Circuit Court of Appeals’ ruling on the matter until it issues something different.

He was referring to the April ruling that Gavin Grimm, a transgender student in Gloucester County, Virginia, had to be allowed to use the boys’ restroom at his high school. That ruling set precedent for West Virginia, which is part of that circuit.

In light of the appeals court ruling, another district judge ordered the Gloucester school board to let Grimm use the boys’ restroom while the court continued to examine his case. On Aug. 3, the U.S. Supreme Court put that order on hold while justices decide whether they want to hear an appeal from the Virginia school board.

Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 35 years, said he believes the Supreme Court’s order only affects the situation for that one Virginia school system.

Dotson said he feels it’s the school system’s duty to follow the law, and while he said he doesn’t think morals aren’t an issue in the matter, he didn’t want to state his moral feelings.

“We want to make sure that all individuals’ rights are respected and honored,” Dotson said.

In Logan County, interim Superintendent Suzette Cook had deferred comment for the Gazette-Mail’s August story to Assistant Superintendent Darlene Dingess-Adkins, who said the school system would follow the federal directive. The day after the story hit print, Logan school board President Paul Hardesty said he would, like Clay County Schools Superintendent Kenneth Tanner has said, rather resign than allow transgender students to use the restrooms that match their gender identity.

He said Logan countians were “going ballistic” in response to the article and that he never talked to Dingess-Adkins about the issue before her statement. He argued the transgender issue is a policy issue that should be left up to the Logan school board, not just the school administration.

When contacted again Friday, Dingess-Adkins refused to comment on whether Logan would still be following the federal guidance and referred a reporter to attorney Leslie Tyree, who didn’t return calls and an email.

Hardesty said Monday that he hasn’t told the Logan school system’s administrators to handle transgender issues any differently since Dingess-Adkins made her original comment, and said he doesn’t plan to put on a board meeting agenda an item to take an official stance until either a transgender student demands to use the accommodations matching their gender identity or an “overwhelming” number of people request that the board take a stance.

Preston Superintendent Steve Wotring told the Gazette-Mail for the August story that his school system would allow transgender students to use restrooms that match their gender identity.

“I don’t think we have much of a choice,” he had said, referring to the federal guidance. But when contacted again Monday, he wouldn’t answer whether his school system would ever deny a transgender student’s request to use the accommodations matching their gender identity.

“I would work on an individual child basis,” Wotring said. “I know that’s not your fundamental question, but that is my fundamental answer.”

He also said “The law will work itself out whenever it works itself out. Until that time, we are in the business of doing what’s best for kids.”

Upshur Superintendent Roy Wager said Monday that he hasn’t assessed the impact of the Texas injunction, and said he couldn’t say whether the school system would deny transgender students access to the accommodations matching their gender identity if there were no mandate for the school system to give them that right.

“I really don’t know how forceful that student or parent will be,” Wager said of transgender students who insist they want to use the accommodations matching their gender identity. “… On the other hand, you don’t want to make the other students uncomfortable, so you try to do what’s best for everybody. And I know that’s not the answer you want, but until I get more direction that’s what we’re going to go with.”

“We are no longer required to offer any student the option of the opposite sex bathroom,” said Price, the Marion superintendent, noting the Texas injunction.

Price said he’s told his principals that transgender students are to be offered two choices: a private accommodation or the one matching their birth-assigned sex. He said his board members did not tell him to make this decision, but he informed them of it and they haven’t objected.

He said the residents who showed up to board meetings to tell the school system not to follow the federal guidance didn’t impact his decision.

Seufer, the education attorney, said that the Texas injunction does create more uncertainty as to whether school systems that ban transgender student access to accommodations matching their gender identity can be found in violation of the federal Title IX law. But he said school systems still could face lawsuits for denying students such access.

The Obama administration said the federal guidance document the injunction blocked was itself based on pre-existing court and agency rulings that supported the concept that Title IX protects gender identity.

“We have to remember, first of all, that these are children,” Price said. “And we have to remember, secondly, that even though they may feel they have the right to do a certain thing, we have to consider the reaction of other students to that.”

He said he’s concerned non-transgender students would bully transgender students if they were allowed to use the accommodations matching their gender identity.

“I don’t see the need to have any child placed in an unnecessary risk,” he said.

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