The Zweckbronners, from left to right: Harry, Bee, Grace and Ann (Photo by Jay Paul)
Grace Zweckbronner, a 14-year-old transgender high school student in Hanover County, just wants to go to the restroom with her friends without feeling like a social pariah.
Unfortunately, she can’t. So last December, she decided to do something about it.
Zweckbronner is one of five students whose parents are plaintiffs in a lawsuit filed by the Virginia ACLU against the Hanover County School Board, which declined to adopt a state-mandated policy last fall allowing transgender students to use bathrooms and other facilities that align with their gender identities.
“I finally just had enough,” Zweckbronner says. “I was tired of having to go somewhere else and missing the social aspect of going to the bathroom with friends.” Being barred from facilities that align with her gender identity, she says, is a near-constant reminder that she isn’t accepted for who she truly is.
“There’s so much I have to deal with on a daily basis,” she says. “Not being able to use the girls’ bathroom is just another nail in the coffin of people not supporting me.”
What might seem like a trivial exercise to some — using the restroom — has become ground zero in an ideological battle over transgender student rights in public schools across Virginia. During a heated meeting in November, the Hanover School Board voted 4-3 against revising policies to protect gender-affirming bathroom access for students. More than 50 people spoke ahead of the vote, including several transgender students.
The ACLU has on its side state law and recent precedent established in a federal case. Both indicate the school division is legally liable for its decision to not grant gender-affirming bathroom access, says Eden Heilman, legal director of the ACLU of Virginia.
“There’s no ambiguity in the school board’s vote,” Heilman says in a statement. “The board members knew [their] actions were discriminatory and outside the law, but they did it anyway.”
State Statute Lacks Clarity
The basis of the ACLU lawsuit is state legislation that passed in 2020, which requires school divisions to adopt policies that protect the rights of transgender and nonbinary students. The legislation came on the heels of a lawsuit filed in U.S. District Court in 2015 by transgender high school student Gavin Grimm, who sued Gloucester County Schools for barring him from using the boys’ bathroom. The judge determined that the board’s action was unconstitutional because it violated Grimm’s Title IX rights, which prohibit sex-based discrimination.
The ruling was upheld in the 4th Circuit Court of Appeals in 2020, and in June of last year, the U.S. Supreme Court declined to hear the case, allowing the lower court’s ruling to stand.
But the battle is far from over. Legislation was introduced in the Virginia General Assembly earlier this year that would reverse the 2020 law, which requires divisions to adopt policies outlined by the Virginia Department of Education. VDOE guidelines require school staff to use the preferred names and pronouns of transgender students and allow students to use bathrooms and other facilities that align with their gender identity.
The 2020 law, however, has been unevenly applied, requiring only that local school boards adopt policies that are “consistent with” the state’s model guidelines. Richmond and Chesterfield have adopted policies closely resembling the state model, for example, while Henrico County Public Schools didn’t address facilities in its updated policy.
Though the state statute lacks clarity, the model policies potentially provide “trans students with additional protections that the Gavin Grimm case does not, or at least that the Gavin Grimm case leaves ambiguous,” says Jack Preis, a professor of law at the University of Richmond. Preis adds that the families of transgender students could sue their school divisions for not adopting policies that grant the full extent of rights enumerated in the VDOE model.
In Hanover, Lisa Seward, the school board’s attorney, pointed to potential loopholes in the state law in a response to the ACLU lawsuit. School boards are not required to adopt the model policy in its entirety, or to blend its language into preexisting school division policies, she says.
But on the issue of bathroom rights, arguments like Seward’s are unwise, Preis says, pointing to the precedent established by the Grimm case. “There’s something called federal law, you have to obey that,” he says.
Risk of Sexual Assault?
Members of the Hanover School Board and others in Virginia assert that allowing transgender students to use bathrooms and other facilities that align with their gender identity puts cisgender students, particularly females, at risk of sexual assault.
Fears that gender-neutral bathrooms could lead to sexual assaults led Del. John Avoli, R-Staunton, to introduce a bill this year requiring schools to provide employees and students with access to bathrooms shared only by members of their biological sex.
“I do not believe that transgender students present a potential danger to other students,” Avoli says in an email to Richmond magazine. “I fear some bad actors see current policies as an opportunity to game the system in order to access students they may be attracted to in vulnerable environments.”
But there is little hard evidence that gender-affirming bathroom policies put students in danger. In fact, the opposite may be true. Not allowing students to use bathrooms that align with their gender identity may increase sexual assaults of transgender students, according to researchers at Harvard University. In a study published in the journal Pediatrics, researchers looked at data from a national survey of 3,673 transgender and nonbinary teens and found that 26% were sexually assaulted in the last 12 months. And incidences of sexual assault among those students who reported that they didn’t have gender-affirming facility access at school jumped to 35%.
Zweckbronner’s mother, Ann, says she just wants her daughter to be treated with the same respect that cisgender students take for granted.
“The dream would be that people understand that transgender people are who they say they are,” she says. But for now, she’ll settle for a little dignity: “I just want my kid to be able to pee in peace.”
