Three West Virginia county school superintendents - in Calhoun, Clay and Doddridge counties - say their districts don't plan to follow the Obama administration's recent, controversial directive regarding transgender students.
That directive says these students must be allowed to use the bathrooms, locker rooms and overnight accommodations that match their gender identity, rather than the gender listed on their birth certificates, if those students want to do so.
Leaders of four other county school systems - Hardy, Logan, Preston and Upshur counties - said their districts plan to comply with the directive.
But superintendents in the state's other 48 counties either didn't have a clear answer on the issue or didn't respond to the Gazette-Mail's calls, even though the school year has begun in all but a handful of counties.
West Virginia Attorney General Patrick Morrisey is among a group of state officials fighting the federal directive in court.
Jim Withrow, general counsel for Kanawha County schools, had previously said the school system would follow the directive. But he said Friday that in light of the U.S. Supreme Court's stay of an order in a related Virginia case, he doesn't know if the county would deny a transgender student's demand to use the accommodations that matched their gender identity.
"I would hate to answer hypothetical questions," Withrow said. "I think we would have a discussion with the student and the parent about their desires and their concerns."
Kanawha Schools Superintendent Ron Duerring didn't return requests for comment.
Opponents of allowing transgender people to use the restrooms consistent with their gender identity have claimed that rapists will dress up as women in order to sneak into women's restrooms and assault women and children.
Police and organizations that work to prevent violence against women have said that denying transgender people the ability to use the restrooms of their choice will do nothing to prevent sexual violence, and reveals a fundamental misunderstanding of the nature of sexual violence, which transgender people are at higher risk of experiencing and which is most often perpetuated by someone known to the victim.
But most superintendents in West Virginia still appear unwilling to take a public stand on the controversial issue.
Several superintendents didn't respond to repeated calls. Several said they'd handle transgender student requests on a "case-by-case" basis, but refused to answer specifically if they would deny a transgender student's request to use the accommodations that match their gender identity.
Some transgender people, when they are denied the ability to use the restroom consistent with their gender identity, avoid bathrooms completely or feel unsafe when using other restrooms. Health care professionals who study transgender health have said being denied the ability to use restrooms consistent with one's gender identity can lead to psychological stress and several other health problems.
The Obama administration's directive, which interprets the federal Title IX law that bars sex discrimination, states that while 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. The administration says its view of Title IX mirrors the interpretations of courts and other agencies.
Morrisey, alongside Maine's governor and attorneys general from nine other states, has sued the Obama administration over the directive. In a letter to county school boards, Morrisey called the federal directive unlawful and said that "practical accommodations can be worked out as necessary for transgender students, such as single-stall, unisex restrooms."
In April, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled in favor of allowing Gavin Grimm, a transgender student in Gloucester County, Virginia, to use the boys' restroom at his high school. In its order, the court noted that school officials had originally allowed Grimm to use the boys' restroom before his use of it "excited the interest of others in the community, some of whom contacted the Gloucester County School Board seeking to bar G.G. from continuing to use the boys' restroom."
The county school board - after hearing from speakers who raised concerns about sexual assault and other students' privacy, and speakers who called Grimm a girl - banned him from the boys' restroom. He said he couldn't use the new unisex restrooms because they served as a daily reminder that the school saw him as "different," and that he developed multiple urinary tract infections from avoiding restrooms at school.
That 4th Circuit ruling set precedent for West Virginia, which is part of the circuit.
But on Aug. 3, the U.S. Supreme Court put the order on hold while justices decide if they want to hear an appeal from the Virginia school board. A few West Virginia county superintendents brought up the Supreme Court's recent action when talking about legal uncertainties in whether they must follow the federal mandate.
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 district.
"Some people have the impression that the Supreme Court's order stopped the [U.S.] Department of Education or [its] Office of Civil Rights from interpreting the law the way they do," Seufer said. He believes their interpretation will stay the same: denying transgender students the right to use the accommodations that match their gender identity violates Title IX.
Asked if his law firm, Bowles Rice, tells counties they can legally deny transgender students' requests, Seufer said, "We don't say they can or they can't."
But he added, "If you have to make a decision on whether to follow that guidance from the federal Department of Education or not, you have to do it with your eyes open," knowing the federal government would likely consider a West Virginia school district in violation if it didn't honor the student's demand.
Seufer said counties don't legally have to make a decision on a transgender policy "until they're faced with it." Reports of transgender students making such demands are infrequent, he said, and some districts don't make a policy to avoid "risk and consternation." He said the ultimate sanction for violating Title IX is a withholding of all federal funding - a significant part of school districts' budgets - though cases don't usually get to that point.
After the 4th Circuit ruling in April, West Virginia Department of Education officials had no substantive comment. When the federal directive was released the following month, the West Virginia department sent that to county schools systems, adding in an email that "the WVDE encourages counties to ensure all students, regardless of gender identify, have adequate privacy protection in any restroom and/or changing facility."
The state Board of Education, which controls the department and writes statewide education policy, has a policy, "Expected Behavior in Safe and Supportive Schools," that says "Acts of harassment, intimidation, or bullying that are reasonably perceived as being motivated by any actual or perceived differentiating characteristic, or by association with a person who has or is perceived to have one or more of these characteristics, shall be reported using the following list." The list includes "gender identity or expression."
It goes on to say that "When harassment, intimidation or bullying are of a racial, sexual and/or religious/ethnic nature, the above definition applies to all cases regardless of whether they involve students, staff or the public." It also says sexual harassment includes, among other things, "creating an intimidating, hostile or offensive employment or educational environment;" "behavior, verbal or written words or symbols directed at an individual because of gender;" and "the use of authority to emphasize the sexuality of a student in a manner that prevents or impairs that student's full enjoyment of educational benefits, climate/culture or opportunities."
Lawyers for the West Virginia department and school board wouldn't say in May if the state policy would require counties to allow transgender students to use the accommodations that match their gender identity, regardless of any federal directive. Asked again this month, Mary Catherine Tuckwiller, a lawyer for the state school board, referred the question to the state Department of Education.
State Schools Superintendent Michael Martirano "has a moral obligation to ensure all students throughout West Virginia have a safe environment to attend school. As always, the safety of our students is paramount," a department spokeswoman said in an email. "The West Virginia Department of Education expects counties to ensure all students, regardless of gender identity, have adequate privacy protections in any restroom and/or changing facility. Our county superintendents have and will continue to ensure the safety of all students, and, if needed, address transgender identity on a case-by-case basis."
Superintendents from Fayette and Gilmer counties, the two school districts currently controlled by the state school board, did not respond to the Gazette-Mail's questions.
Kanawha County's school board also has a policy mentioning protections for students regarding gender identity, but Withrow said he doesn't know if it would require the district to honor a transgender student's request to use accommodations matching their gender identity.
"If their birth certificate says they were a male, but they identify as a female, they're going to use the male restroom," Calhoun County Superintendent Tim Woodward told the Gazette-Mail, "because my board and myself have some questions about the president's interpretation and how it affects Title IX."
Compared to Kanawha's 27,350 students, Calhoun had about 1,060 students last school year; official enrollment for this school year isn't available yet. Woodward said a transgender student asked his school system to use a private restroom last school year and the district complied, and he's directing his principals to offer private facilities to transgender students in the future.
"I think with the multiple interpretations and the latest act of the Supreme Court, the final ruling or the final interpretation is still very open and still very left to interpretation, and I don't think we have the final answer," Woodward said.
Woodward said he wasn't sure he felt comfortable answering questions about the morality of the issue. He said he'd rather approach it from a legal standpoint.
"We have a legal obligation to protect the rights of all children, and my personal feeling is that the interpretation given to us by the Obama administration did not do that, that it did not take into account the right of privacy of every child," he said.
Doddridge County Schools Superintendent Adam Cheeseman, whose district had about 1,180 students last school year, said his district will offer transgender students private facilities, and would not allow them to use the bathrooms that match their gender identities - until, legally, "this whole thing gets sorted out."
"The best way to sum it up is, we want to accommodate and respect the wishes of all of our students, and we have to look out for the well-being of all of them," Cheeseman said. He came to the county in 2012, and said he said he hasn't heard of a transgender student making such a request since then.
He said he thinks concerns would be brought to him and other superintendents about heterosexual boys using the policy to snoop at girls. When asked whether he would have a personal concern like that, he said, "Yes, I would. I have three little girls."
Logan County's interim superintendent, Suzette Cook, who started her job Aug. 9, referred questions to Assistant Superintendent Darlene Dingess-Adkins.
Dingess-Adkins said the county, which had about 6,060 students last year, would comply with the federal directive.
"I will assure you that we will follow federal law. We're not going to take a chance on losing our funding," said Dingess-Adkins, who was director of the county's Title I federal funding for the past seven years. She said she's never heard of a Logan transgender student making such a request.
Clay County Schools Superintendent Kenneth Tanner, who had about 2,000 students last school year, went so far as sending home a letter to parents saying his district wouldn't follow the directive, but would offer private facilities. He told WSAZ-TV that he'd quit before he followed the federal directive.
"I've been in this school system 35 years, and I love this school system, I don't think there's a superintendent in West Virginia that could do this," he said.
Steve Wotring, superintendent for Preston County schools, was one of the few who said he wouldn't let transgender students be turned away from using restrooms for their gender-identity at schools in his county.
"I don't think we have much of a choice," Wotring said, referring to the federal guidance on the issue. He believes that guidance stands unless the Supreme Court overturns it.
Wotring, who has served in Preston County schools for 34 years, said he was not aware of a time the situation had arisen. The county had 4,540 students last year.
If it does, he said, each situation would be handled on an individual basis.
"Every child is different," he said.
While first saying they would look at requests on a case-by-case basis, Upshur County Superintendent Roy Wager said it was school attorneys' view that the district had no choice but to follow federal law, which trumps state law. He noted the government could withhold federal funds otherwise.
Upshur County, which had 3,790 students last year, hasn't had to deal with the issue, Wager said. He said they do have one transgender student, but that student and the student's parents asked that the student use a unisex bathroom, and the school district complied.
Hardy County Schools Superintendent Matthew Dotson, whose county had about 2,390 students last year, said he's not aware of a transgender student ever requesting to use the bathroom matching their gender identity in his county, but said his district would comply.
"I don't really take a moral position either way," Dotson said. "I'm going to follow whatever the law dictates and the law requires."
Bondy Gibson - superintendent of Jefferson County Schools, which had 9,100 students last school year - was one of many superintendents who wouldn't say whether a transgender student would be denied that right in her district. "I'm not going to be drawn into a political discussion of this," she told a reporter. "My concern is that you are creating these politically charged hypotheticals in an attempt some kind of controversy that does not currently exist."
While superintendents remain silent, and politicians argue, transgender students are listening.
Jamison Green, immediate past president of the World Professional Association for Transgender Health, and Lisa Kenney, executive director of Gender Spectrum, said that many transgender students already used the bathroom of their choice before the recent controversy.
"That's the thing about a lot of this," Green said. "It's already been happening for decades. It's been happening for centuries, but no one has noticed. Now we're acknowledging that these people exist and they should be treated fairly."
Green said other transgender students likely are waiting until they are older to say they are transgender, when they may feel more safe.
Kenney, whose organization provides training to educators on gender identity issues, said the issue is resulting in transgender students feeling even more unsafe at school, and as a result, unable to concentrate and learn.
"Unfortunately, this issue is really getting politicized," she said. "What gets lost is, we're really just talking about kids who need to go to the bathroom."
Reach Erin Beck at erin.beck@wvgazettemail.com, facebook.com/erinbeckwv, 304-348-5163 or follow @erinbeckwv on Twitter.
Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.