Flush with emotion: Gender-neutral bathrooms may be coming to Augusta County but not without a fight

VERONA — Augusta County Public Schools may be moving ever so slightly closer to inclusivity for transgender and gender-nonbinary students.

The school division which rejected model policies for protection of transgender students in July 2021 has quietly added plans for gender-neutral bathrooms to its two new middle school wings at Riverheads and Buffalo Gap high schools. Those wings are currently under construction with plans to open for the 2024-25 school year.

The plans currently include banks of private, self-contained toilets throughout both schools. Banks may contain anywhere from two to four individual stalls with each stall having a door that closes much like in a residential bathroom. The doors will have no gap at the top or bottom according to current plans.

School officials said there are a total of 23 private self-contained toilets for students at Buffalo Gap Middle and 22 for students at Riverheads Middle. Sinks in the banks are shared.

“During the design phase of the middle school restrooms, the school board, at that time, saw the opportunity to provide a safe and practical way of providing appropriate facilities for all students during the construction of the two new schools,” said Miranda Ball, executive director of communication for Augusta County Public Schools. “The ‘unisex/gender neutral’ design was discussed and was the consensus by the board during the design phase.”

Jennifer Kitchen is the parent of a gender-fluid child who attends Augusta County Public Schools. The family has not had any issues with the school division since the child came out in elementary school. Kitchen said school administrators have been respectful of pronouns and have worked to find acceptable bathroom accommodations by allowing the student to use individual bathrooms in the guidance office.

Using restrooms not normally accessible to students and many times out of the way is what many transgender and nonbinary students have to do if they don't want to use a gendered bathroom.

In 2021, during the school division’s discussion about model policies, Will Hawpe, a transgender male, told The News Leader that he was not allowed to use the boys bathroom at his Augusta County school, instead having to use private bathrooms in the nurse’s office or main school office. He said it was just easier to restrict his intake of food and beverages so he could avoid using the bathroom.

GLSEN, an organization that advocates on behalf of LGBTQ students, released a 2021 study showing 45% of LGBTQ+ students avoided school bathrooms because they felt unsafe or uncomfortable. Kitchen feels like creating gender-neutral bathrooms easily accessible to all students is one possible solution.

“Why should my child have to walk further to go to the bathroom than someone else’s?” Kitchen asked this past week.

Not everyone is happy

Pushback on the plan to include gender-neutral bathrooms has already started since an Aug. 5 Facebook post by conservative school board member Tim Simmons. The Pastures District representative told The News Leader that there has already been at least one meeting between a citizen concerned about the bathrooms and two school board members, one of whom was Simmons.

Simmons expects many of those opposed to the bathroom concept to show up at the Sept. 7 school board meeting to voice their displeasure and he’s asked the school division to include discussion of the topic on the agenda for that night. Ball said, as of Friday, the agenda has not been finalized.

“I intend to advocate for separate boy/girl restroom pods now that I have become aware of this matter,” Simmons wrote in his Facebook post.

In a conversation with The News Leader, Simmons said his concerns don’t focus entirely on transgender students. For instance, he worries that, with closed doors that have no gaps, students may overdose and no one will see them. He also worries that girls who are menstruating will be self-conscience of cleaning up next to a boys at the shared sinks. And he wonders if students might use the advantage of closed doors for sexual or other illicit behavior.

But Simmons did tell The News Leader that he doesn’t see a reason to completely change the way schools build bathrooms to accommodate what he said was “less than 1%” of the student population, referring to transgender and nonbinary students.

While Simmons didn’t say where he got that data, a 2022 report by the Williams Institute at the University of California, Los Angeles, estimated that 1.4% of 13- to 17-year-olds are transgender. That same year, the Pew Research Center said 5.1% of adults younger than 30 are trans or nonbinary.

“I don’t care if it’s one student,” Kitchen said. “That one student deserves the dignity of every other student.”

Republican Gov. Glenn Youngkin has spoken in favor of gender-neutral bathrooms. At a town hall meeting this past March, Youngkin, in response to a question from a transgender teen, said “We need gender-neutral bathrooms" so people can use the bathroom that they are comfortable with, according to a story in The Hill. The same article quoted the Governor as saying "allowing a child to choose a gender neutral bathroom where their dignity and their privacy can be protected, is a good answer."

The recent model policies for treatment of transgender students created by Youngkin's administration calls for single-user bathrooms and facilities to be made available in accessible areas.

Lack of transparency?

In addition to his concerns over the bathroom designs, Simmons also believes the school board wasn't transparent with the public in the decision to add gender-neutral bathrooms. This is only his second year on the board, winning election in November 2021, and he admits much of the design phase for both middle schools took place before he was on the board.

Still, he doesn't recall hearing about gender-neutral bathrooms and neither do many of the people he talks with in his district. Simmons only heard about it from one of his constituents who, according to him, heard about it from someone who was part of the school construction.

Ball told The News Leader that floor plans were presented at public school board meetings in December 2021 and January 2022. Deputy Superintendent Doug Shifflett did present an update on middle school construction at the Dec. 2, 2021 regular monthly meeting. And at the Jan. 20 board retreat, which began at 1 p.m., members of both RRMM Architects and Nielsen Builders gave an update on the construction project. The minutes don't include anything about a discussion of the bathrooms.

"They gave us kind of a 3D look at the outside of the building and a bird's-eye view of the layout," Simmons said of the retreat, his first month on the board. "But nothing that would tell me the bathroom looked like this."

In September, 2022 there were community meetings at both Riverheads High School and Buffalo Gap High School where Ball said floor plans were presented and there was a question-and-answer session with school staff and architects. There are no minutes available online for those meetings.

Simmons doesn't think most people would know enough from looking at floor plans to ask if bathrooms were gender neutral, and he's not happy that school officials weren't more upfront about the bathroom design.

"It's a disservice not to have public input and have some kind of open communication about what's going on with these very sensitive social issues," Simmons said.

The school board member ran on a platform that included the popular talking point of many conservatives, parental rights. It's a rather harmless sounding phrase — who would object to parents having a say in their child's education? — but one that many on the right have used to ban books, change the way history is taught and lessen protections for LGBTQ students. The "don't say gay" bill in Florida is officially known as the Parental Rights in Education Act.

Simmons has also argued for more transparency on other issues the school board has addressed, including a decision to prevent comments on official school social media posts. Simmons voted against that policy, saying it was a suppression of free speech.

He finds what the school division has done with middle school bathrooms both a breach of parental rights and a lack of transparency.

Plans may change

The current design calling for all of the banks of bathrooms to be gender neutral is not finalized, according to school officials.

"While the design of the restrooms can be defined as 'unisex/gender neutral', we have the flexibility and time to identify one bank of restrooms as a 'girls' restroom and down the hall, the other bank of restrooms being the 'boys' restroom," Ball told The News Leader.

That is what Simmons will be pushing to happen. Asked, in the way of compromise, if he was OK with some banks being designated for boys, others for girls and some as gender neutral, he said he wasn't. He did say if a separate single-user bathroom that wasn't part of a bank of stalls was built and designated gender neutral he'd find that acceptable.

Meanwhile, Kitchen felt the idea of keeping at least some, even if not all, of the banks of bathrooms gender neutral was a good one.

"Absolutely," she said. "That's a huge step in the right direction. As someone who has had to stand in line for the women's bathroom it would be nice to have another option."

If the bathrooms are only designated "boys" and "girls," then another section of Youngkin's model policies will come into play. The policies state that "students shall use bathrooms that correspond to his or her sex, except to the extent that federal law otherwise requires."

That federal law policy is where things get tricky for those who want students to use bathrooms based on their sex assigned at birth.

In 2021, the United States Supreme Court declined to take a case regarding whether schools can keep students from using the bathroom reflecting their gender identity. Gavin Grimm, a transgender male, was denied access to the boys' bathroom and filed suit in 2015 against Gloucester County in Virginia, saying it violated his rights under Title IX and the Equal Protection Clause of the 14th Amendment.

The 4th U.S. Circuit Court of Appeals found in favor of Grimm, saying the school’s policy discriminated against him. The court hears appeals from the nine federal district courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

That means, a student has the right to use the bathroom based on their gender identity. Simmons understands that.

"If somebody is transgender and wanted to go to one of those bathrooms, you can't stop them," Simmons said.

If Augusta County does proceed with making at least some of the banks of bathrooms gender neutral it would be a first in the in the county. No other Augusta County Schools have gender-neutral bathrooms outside of offices or nurse's stations.

Still, all of this time spent on discussing bathrooms makes Kitchen wonder if the community's priorities are in the right place.

"Let's talk about the core curriculum topics and how we need to be funding our arts programs," Kitchen said. "And stop fighting about the bathroom."

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— Patrick Hite is a reporter at The News Leader. Story ideas and tips always welcome. Contact Patrick (he/him/his) at phite@newsleader.com and follow him on Twitter @Patrick_Hite. Subscribe to us at newsleader.com.

This article originally appeared on Staunton News Leader: Flush with emotion: Gender-neutral bathrooms may be coming to Augusta County but not without a fight