On Dec. 21, the ACLU of Virginia filed a letter in support of the Loudoun County School Board adopting policies that would protect LGBTQ employees and students from discrimination and harassment. The letter, penned by ACLU legal fellow Gail M. Deady, is excerpted below. The full document, including legal citations, can be found here. A counterpoint by Del. Dave LaRock (R-33rd) can be found here.
It has come to our attention that the Loudoun County School Board is considering amending the school district’s non-discrimination and anti-bullying policies to specifically prohibit discrimination and harassment on the basis of a person’s actual or perceived sexual orientation or gender identity. It is the ACLU of Virginia’s position that the school board not only has the authority to implement such protections under Virginia law, but that it should amend its policies to reflect its current obligation to protect students and personnel from sexual orientation and gender identity discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et. seq. (Title VII), Title IX of the of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq. (Title IX), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The ACLU of Virginia strongly supports the adoption of proposed Policy 7014, Version B, which will protect school personnel from harassment based on actual or perceived sexual orientation or gender identity/expression, and the amendment of proposed Policy 7012, Version B, to specifically prohibit discrimination based on sexual orientation and gender identity/expression. We also urge the school board to consider amending Loudoun County Public Schools’ current student non-discrimination and anti-bullying policies to ensure both students and personnel have the opportunity to learn and work in an environment free from harmful – and unconstitutional – sex-based discrimination and harassment.
Due to misinformation about the legality of such amendments shared during the school board’s Dec. 13 meeting, and concerns expressed by the public regarding future changes to student policies, we offer the following guidance.
Authority under Virginia Law
In a 2015 Opinion, Virginia’s Attorney General Mark Herring clarified that school boards have authority under the Constitution of Virginia, and the Code of Virginia, to amend their non-discrimination policies to prohibit discrimination based on sexual orientation and gender identity.
The Opinion correctly explains that under the Dillon Rule, a school board’s powers are limited to (1) powers expressly given to a school board by the Constitution of Virginia or by the Virginia General Assembly; (2) powers “necessarily or fairly implied from expressly granted powers”; and (3) powers that are “essential and indispensable” to a school board’s mission. To date, the General Assembly has not given school boards express power to prohibit discrimination on the basis of sexual orientation or gender identity. The Constitution of Virginia, however, expressly grants school boards the power
to supervise schools, so school boards have implied authority to regulate students’ safety and welfare, supervise personnel, and apply “local policies, rules, and regulations adopted for the day-to-day management of a teaching staff”. No other local or state entity can interfere with a school board’s far-reaching supervisory authority.
The Opinion goes on to state that, “[r]egulating how a school system, students, and employees interact with and treat one another is a fundamental component of supervising a school system. A policy that allows some students or some employees to be treated differently from others necessarily implicates the welfare of students and supervision of personnel.” As the Constitution of Virginia clearly allows school boards to regulate these areas, “the authority to prohibit discrimination, including discrimination based on sexual orientation or gender identity, is a power fairly or necessarily implied from the
constitutional duty to supervise schools.”
The General Assembly also granted school boards the power to “adopt bylaws and regulations … for the management of its official business and for the supervision of schools,” and to promulgate standards of conduct to “provide that public education be conducted in an atmosphere free of disruption and threat to persons or property and supportive of individual rights.” As the Attorney General correctly concluded, a school board is well within its power to determine that specifically prohibiting discrimination on the basis of sexual orientation or gender identity is necessary to attain those goals.
Obligations under Federal Law
Amending LCPS’ Policy Manual to specifically prohibit bullying, discrimination, and harassment on the basis of sexual orientation and gender-identity/expression would bring these policies in line with the division’s existing obligations under federal law.
First, many courts have recognized that discriminating against employees based on their actual or perceived sexual orientation or gender identity violates Title VII, which prohibits sex discrimination in employment. As a covered employer under Title VII, the school district could be held liable for failing to protect school personnel from LGBTQ-based discrimination and harassment. Acknowledging these obligations in LCPS’s official policies provides personnel with notice of their individual rights and what behavior is, and is not, permitted at work.
Next, under Title IX, schools may be held liable if they act with deliberate indifference in failing to protect students from severe peer harassment on the basis of sex — including harassment based on a student’s gender identity, sexual orientation or failure to conform to sex stereotypes. School districts found liable for anti-LGBTQ bullying as a result of deliberate indifference have faced damages awards as high as $1.1 million. Further, the U.S. Department of Education issued guidelines in 2010 clarifying that a school is not relieved of its obligation to investigate and remedy severe harassment or bullying just because it includes anti-LGBTQ comments or is based on the target’s actual or perceived sexual orientation or gender-identity.
Finally, the school board faces potential liability under the Equal Protection Clause of the U.S. Constitution if it discriminates against students on the basis of gender identity by excluding transgender students from using the same restrooms, locker rooms and other sex-segregated school spaces as other students. Such policies also deprive transgender students of equal access to educational opportunity on the basis of sex, in violation of Title IX. There is no state interest that justifies different treatment of transgender students based on their gender identity. The use of restrooms does not entail exposure to nudity, and locker rooms can provide curtains and other measures to ensure privacy.
Thus, a school district may satisfy its Title IX and Equal Protection Clause obligations and protect potential or actual student privacy interests by prohibiting discrimination on the basis of gender identity, and allowing transgender students to use facilities that correspond to their gender identity. 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 reason – private facilities can be made available for them to use if they choose. But the Equal Protection Clause does not permit schools to force transgender students to use separate facilities because some people might feel uncomfortable with them.
Inclusive Policies Help Prevent Anti-LGBTQ Victimization
Even if federal law did not require schools to protect students and personnel from harassment, bullying, and discrimination based on sexual orientation or gender identity, the school board would be acting in the best interests of its constituents by amending its policies to specifically prohibit such actions and behavior.
Recent surveys have shown that 27 percent of gay, lesbian, and bisexual people, and 78 percent of transgender people, had experienced at least one form of sexual orientation or gender identity-based discrimination or harassment at work during the previous five years. Widespread and continuing discrimination against LGBTQ people has been documented in court cases, state and local administrative complaints, academic journals, newspapers and other media. The federal government and many state and local governments have concluded that LGBTQ people face widespread discrimination in employment. Discrimination and fear of discrimination can negatively affect employees’ wages, job opportunities, mental and physical health, productivity and job satisfaction. In contrast, LGBTQ-supportive policies and workplace climates are linked to greater job commitment, improved workplace relationships, increased job satisfaction, improved health outcomes and increased productivity among LGBTQ employees.
Feeling unsafe at school can negatively affect a student’s ability to thrive and succeed academically. Among students surveyed in the Gay, Lesbian and Straight Education Network’s (GLSEN) 2015 National School Climate Survey, nearly six in 10 reported feeling unsafe at school because of their sexual orientation, and four in 10 felt unsafe because of how they expressed their gender. Almost one-third of students surveyed missed at least one day of school in the previous month because they felt unsafe or uncomfortable.
The GLSEN survey provides ample evidence of why schools should implement specific LGBTQ protections. For example, 85 percent of students surveyed had been harassed at school based on their sexual orientation or gender expression. Yet, 57.6 percent did not report these incidents to school staff. Of those who did not report, 67.2 percent doubted effective intervention would occur and 64.3 percent feared reporting would worsen the situation. When students did report victimization, 63.5 percent of LGBTQ students said that staff did nothing or told the student to ignore it. Such outcomes should be unacceptable to school administrators.
When schools do not address these situations, students suffer the consequences, which include lower GPAs than other students, being three times as likely to have missed school in the past month because of safety concerns, lower levels of self-esteem and higher levels of depression.
Adopting and amending LCPS’s non-discrimination and anti-bullying policies to protect students from anti-LGBTQ bullying and harassment would be a step in the right direction. Students in schools with LGBTQ-specific non-discrimination and/or anti-bullying policies reported the lowest levels of anti-LGBTQ victimization, compared to students in schools with a generic anti-bullying policy or no policy at all. They were more likely to report that staff intervened when hearing anti-LGBTQ remarks; experienced less anti-LGBTQ victimization; and were more likely to report anti-LGBTQ bullying or harassment to school staff and rate staff response as effective.
Inclusive Policies Help Transgender Students Thrive
By amending its non-discrimination policy to specifically prohibit discrimination against students on the basis of gender identity, the school board would not only clarify its intent to comply with federal law, it would also confirm its commitment to protect transgender students’ health and well-being by acting in accordance with widely accepted standards of medical care for transgender people.
Requiring transgender students to use the restrooms that correspond with the sex they were assigned at birth, instead of the gender they live every day, or requiring them to use separate single-user restrooms, is profoundly harmful. Excluding transgender students from the same restrooms used by other students that correspond to their gender identity sends a message to transgender students and their peers that transgender students should be treated differently and that their mere presence in the same facilities used by their peers is unacceptable. When transgender students are required to use separate facilities, it does not go unnoticed by other students. Being separated from other students in this way would be damaging to anyone, but it is especially harmful for transgender children, because they are at a heightened risk of stress and victimization by others, and those stressors can lead to problems in adulthood including post-traumatic stress disorder, depression, anxiety and suicidality.
This impairs their ability to learn, grow and thrive in the school environment. Moreover, research shows that denying transgender people access to restrooms that correspond to the gender they live every day has a serious impact on their education, employment, health and participation in public life.
In contrast, accepting a student’s gender identity can promote a positive educational experience. School administrators collectively responsible for more than 1.2 million students in districts with transgender-inclusive restroom and locker room policies – some of which have been in place for over a decade – have had overwhelmingly positive experiences. Far from being disruptive or potentially unsafe, administrators have found that transgender-inclusive policies eliminated the disruption that resulted from singling out and stigmatizing transgender students, and avoided disrupting the normal social interactions involved in the use of communal bathrooms and other gendered spaces and activities.
We hope this letter has given you a firm understanding of why the school board should – and must – protect its students and personnel from sexual orientation and gender identity discrimination – including allowing transgender students to use school restrooms and other sex-segregated facilities that correspond to their gender identity. We strongly encourage the board to adopt Policy 7014, Version B; to amend Policy 7012 to specifically prohibit discrimination based on sexual orientation and gender identity/expression; and to consider amending the school LCPC’s student nondiscrimination and anti-bullying protections to specifically prohibit discrimination and harassment/bullying based on a student’s actual or perceived sexual orientation or gender identity/expression.
All of these proposed changes are permissible under Virginia law and consistent with the board’s obligations under federal law.