When leaders in Charlotte-Mecklenburg Schools (CMS) issued new rules on transgender students last week, advocates say the system installed the broadest set of school protections yet for North Carolina students, including guarantees that children would be able to use the names, restrooms and locker rooms matching their gender identity.
The policy followed an April ruling by the U.S. 4th Circuit Court of Appeals that ordered a transgender student must be allowed to use the bathroom corresponding with his gender identity, a direct contradiction of North Carolina’s mega-controversial House Bill 2, which would require students use the bathroom matching their birth certificate.
But this week, based on Policy Watch interviews with leaders in most of North Carolina’s largest school systems, districts say they have no plans to follow suit with Charlotte school leaders, choosing a more conservative route or a nebulous middle-ground while a pivotal transgender bathroom case tracks through the courts.
“I believe it’s clear that my board’s values are inclusion or a safe place for every student, and that goes for transgender students,” says Heidi Carter, chairwoman of the Durham Public Schools Board of Education. “But how that is implemented, it has led to confusion now that we have HB2 and Title IX from the federal government in conflict with each other.”
Carter’s comments echo many of the school district leaders who spoke to Policy Watch in recent days, as the N.C. General Assembly winds down its short session and hopes for a repeal or compromise on HB2 dim.
“As a school board member, I really respect (CMS’) policy,” adds Carter. “Because I think that makes it really clear to principals and educators how they are to respond to transgender student requests.”
Yet, Carter says, Durham’s public schools, like many others in the state, will not yet pursue sweeping, explicit guidelines like those offered up in Charlotte in recent days. It shows the balancing act many districts are facing today, fearing retribution from state or federal officials as both sides bicker over bathroom policies, with billions of dollars potentially at stake.
CMS’ policy will also honor students’ gender identity in yearbooks and graduation ceremonies, The Charlotte Observer reported.
The school district, the second-largest in the state of North Carolina, will shelve mainstay practices that unnecessarily divide students by gender, such as separating classes into lines for boys and girls. And schools will be directed to compile classroom rosters that note a student’s preferred gender identity, rather than following official school transcripts bearing the student’s name and gender on their birth certificate.
The move, proponents say, should not be classified as “defiance” of HB2, a state law that Gov. Pat McCrory will defend in a pending lawsuit with the U.S. Department of Justice. This spring, the federal agency roundly condemned HB2 as violating the gender discrimination protections of Title IX of U.S. education law
Rather, leaders in the school system say, CMS’ new policy is simply adhering to federal court rulings.
“This is about courage, understanding and compassion,” CMS Superintendent Ann Clark told reporters last week. “These are our children. These are the community’s children.”
It’s unclear how GOP leadership in the legislature views the Charlotte policy. House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Guilford, Rockingham, did not respond to Policy Watch interview requests.
But the ACLU of N.C., which is leading one pending legal challenge to HB2, has a clear message for local school systems caught in the middle: Look to Charlotte.
“We think that Charlotte-Mecklenburg’s school system did right, both by their students, but also by the law,” said Chris Brook, the ACLU’s legal director. “Every school district has an obligation to their students. What Charlotte-Mecklenburg Schools did is very much in accordance with that obligation.”
For two months, Gavin Grimm, a student in a Gloucester County, Va., high school used the restroom with the other boys in his local school.
But when parents complained about Grimm, who was born a girl but began identifying at school as a boy at the beginning of his sophomore year, local school leaders moved to adopt a policy requiring that Grimm use separate, “gender-neutral” restrooms.
Singled out by the separate bathroom, Grimm began using the restroom infrequently, leading to urinary tract infections, his lawyers say. Lawyers for the Virginia chapter of the ACLU filed suit against the district in 2015, contending that the policy was a discriminatory violation of federal law.
U.S. District Court Judge Robert Doumar, an appointee of President Ronald Reagan, ruled against Grimm last September, but a 4th Circuit federal appeals court found in April that the school system’s policy is indeed a violation of Title IX’s sex protections in U.S. education law.
Grimm’s case may be bound for the U.S. Supreme Court, most legal observers say, but, in the meantime, the appeals court ruling is considered by some to be the law in the 4th Circuit’s five states, which includes North Carolina.
And groups like the ACLU of N.C. contend it’s a clear sign that North Carolina’s House Bill 2 is a violation of federal law, even as North Carolina leaders like McCrory demand that federal agencies “clarify” their policies.
On Wednesday, Brook reaffirmed that no North Carolina school system, under the federal ruling, should be issuing a “categorical prohibition” on transgender students using the restroom matching their gender identity.
Furthermore, “gender neutral” bathrooms should not be the only option for these students, Brook says.
Eliza Byard, executive director of GLSEN, a national network advising schools on LGBTQ-friendly practices, agrees.
“When it comes to what’s best for a school, respond to the needs of transgender students and the community and do what works for education, which is accommodate transgender students with little fanfare and comport with federal law,” said Byard.
Both Byard’s group and the ACLU argue that requiring transgender students use separate, gender-neutral restrooms breaks with federal law and best educational practices.
“One of the most basic tenets of civil rights law is that separate is not equal,” said Byard. “The problem is: If that is the only bathroom available to a transgender student, then they do not have equal standing with other students in the school. It’s pretty simple. They are separated out from the rest of the student body.”
Such separate bathrooms are stigmatizing and could also pose practical problems, advocates like Byard say.
“What if that one restroom is across campus?” Byard said. “Sometimes, students don’t have time to walk across campus. They could be late for class.”
It’s these types of issues that Charlotte-Mecklenburg Schools’ policy seemingly barred when they passed down new regulations last week, supporters say. But district leaders across North Carolina say they’re still unsure about the next steps when it comes to transgender students.
Wake County Public School System, encompassing more than 157,000 students, is the largest district in the state. Heather Lawing, spokeswoman for the district, says the school system hasn’t crafted any transgender bathroom policies, emphasizing the district handles questions about transgender bathroom use on a “case by case” basis.
Each of Wake County’s schools has at least one single-stall restroom on campus, she adds, which is typically reserved for faculty, although she said single-stall bathrooms may “certainly” be an option for accommodating transgender students.
Lawing adds that district leaders, for the time being, are not considering any CMS-like policies. “We still strive for a respectable place for children, but given the court cases, this could take some time to sort out,” she said.
Leaders in Guilford County Schools, the third-largest district in North Carolina, are taking a similar wait-and-see approach, although Alan Duncan, chairman of the county school board, points out his district has long been outspoken in opposing discrimination.
In April, the school board, like dozens of other local government bodies in North Carolina, passed a resolution demanding a full repeal of HB2. And, Duncan points out, the district approved a broad anti-discrimination and anti-bullying policy in 2009 that includes gender identity.
But Duncan’s district also does not have an explicit bathroom policy. Still, he says the district’s longstanding policy has been effective, and that he believes Guilford schools are in full compliance with the Fourth Circuit’s decision.
“It’s unfortunate we’re not spending time on things that help our children,” Duncan adds of HB2.
Meanwhile, even in some of North Carolina’s most socially progressive districts, school leaders are taking a more conservative approach than CMS.
Heidi Carter, with the Durham Board of Education, was one of many national school leaders who joined a legal brief last week petitioning the courts to side with transgender students and the ACLU on North Carolina’s bathroom law.
But, while the district assumes that the federal court ruling supersedes the state’s law, Carter said Durham schools deal with bathroom usage “more as a practice than a policy.”
Each case is different, she said. Some students are comfortable using a gender-neutral restroom. “There are others who are further along who want more and deserve more,” she said.
Still, while Carter said she does not anticipate any sweeping policy changes, she said she expects the school system may move toward “clearer guidelines” on bathrooms soon.
“We have room for improvement still, and we want to get it right,” Carter said. “I think it’s the right thing to do.”
Meanwhile, in the Chapel Hill-Carrboro City Schools system, one of the most liberal-leaning districts in North Carolina, school leaders say they view the bathroom conflict as a “non-issue.”
School board leaders updated a non-discrimination policy that includes gender identity last year, although neither specifically addresses bathroom usage, says Jeff Nash, spokesman for the school system.
Nash added that the district made the “proactive decision” last year to designate at least one bathroom in every middle and high school as a “gender-neutral” facility. Since then, no transgender students have asked school leaders to use the male or female restroom corresponding to their gender identity.
And, despite the push by CMS and LGBTQ advocates away from separate, “gender neutral” restrooms, James Barrett, chairman of the Chapel Hill-Carrboro school board, told Policy Watch he does not believe the district needs any new regulations.
“We’re set up at every one of our middle and high schools for every student to have a safe and comfortable bathroom,” said Nash.
Advocates like Byard, GLSEN and the ACLU hear those arguments, but they say such concessions, in the end, might not be enough for true equality in schools.
“Educators have been clear about this,” said Byard. “The federal government has been clear about this. These students deserve to go to school on the same basis as other students.”
And, given federal courts’ recent movement on this issue, any further anti-LGBTQ interventions from state lawmakers should be deemed risky at best, says Byard.
“Elected officials should get out of the way of good practice,” she said. “Efforts to pass laws to undermine good education practices and civil rights law seem to be a losing proposition to my mind.”