Some West Virginia school systems appear reluctant to take a stand on whether transgender students should be allowed to use the bathroom that matches their gender identity, as the Obama administration and the West Virginia attorney general disagree over the issue.
On April 19, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in favor of a transgender teenager who, despite having a "biological sex" of female, sought to use the boys' restroom in a Virginia high school. The teen had been diagnosed with gender dysphoria, which the court described as a "medical condition characterized by clinically significant distress caused by an incongruence between a person's gender identity and the person's birth-assigned sex."
That case set precedent for West Virginia, which also is part of the 4th Circuit.
Last week, the U.S. Education and Justice departments issued joint guidance saying public schools must permit transgender students to use the bathrooms and locker rooms consistent with their chosen gender identity.
On Wednesday, though, West Virginia Attorney General Patrick Morrisey - who has requested that all 15 4th Circuit judges rehear the Virginia case - sent letters to West Virginia's school boards calling the federal guidance unlawful.
"As the chief legal officer of our State, I write to assure you that this letter is not the law," Morrisey wrote, saying school policy should be set locally and calling the letter an attempt by President Obama "to bully the rest of the country into accepting his particular worldview.
"As you know, practical accommodations can be worked out as necessary for transgender students, such as single-stall, unisex restrooms," the attorney general wrote. "Do not allow the President's effort to unilaterally change the 40-year-old terms under which we accepted federal school funding - a naked bait-and-switch - to intimidate you. You should be aware that several schools that have permitted students to access facilities of the other biological sex are already being sued by parents and students for invasions of the rights of other students."
The state Department of Education distributed the federal guidance to school systems. Heather Hutchens, the department's general counsel, said Thursday there are no plans to send out additional guidance in response to Morrisey's action.
"We will continue to monitor any additional information that is forthcoming from the United States Department of Education or the courts," Hutchens wrote in an email.
A.J. Rogers, executive director of the West Virginia Association of School Administrators, said his organization hasn't taken a position on the issue. He said that at its regular meeting last week, which about 30 county superintendents attended, he heard most people saying they'd wait to deal with the issue until a transgender student made a bathroom request, and most people have their fingers crossed that they'll be able to see more of what happens on the state and national levels before having to make a decision.
Rogers, who's also a Nicholas County school board member, said his board already has been asked what it will do. He said that if it were up to him, he wouldn't allow transgender students to use the bathroom of their gender identity because of his religious beliefs, but he said he'll follow what the law decides.
"In the Bible Belt counties, it's really going to be a hot item - if indeed some schools are challenged and some counties are challenged - and superintendents are really concerned about how they're going to handle it," Rogers said.
Jim Withrow, general counsel for Kanawha County Schools, said his interpretation that the county must allow transgender students to use the bathroom of their gender identity hasn't changed because of Morrisey's letter. He said he doesn't think a deadlocked U.S. Supreme Court would ultimately overturn the 4th Circuit opinion.
Sam Sentelle, a Putnam County school board member who's president of the West Virginia School Board Association, declined to give his opinion on what he personally believes transgender students should be allowed to do. Sentelle, a former Putnam superintendent who claims 50 years of experience in education, said he hasn't read the federal guidance, has never heard of such an issue in West Virginia schools and, when asked how he'd handle such an issue today, said, "I'm glad I don't have to make a decision on that right now."
Howard Seufer Jr., a Charleston attorney who has practiced school law for more than 35 years, said that, in the current legal debate, "it's really a matter of assessing what the school district is prepared to do and what risks it's willing to face, in regard to which course of action it decides to take."
He said he agrees with Morrisey that the federal guidance is neither an official U.S. Education Department regulation nor a law, but he said the guidance does provide school systems good information on what stance the federal government would take in lawsuits surrounding the issue and possible withdrawal of federal funding.
Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, 304-348-1254, facebook.com/ryanedwinquinn or follow @RyanEQuinn on Twitter.