How A Conservative Law Firm Convinced A School System To Gamble On An Anti-Transgender Policy

Grayson County Superintendent Kelly Wilmore CREDIT: WDBJ7/SCREENSHOT
Grayson County Superintendent Kelly Wilmore CREDIT: WDBJ7/SCREENSHOT

The schools in Grayson County, Virginia have a new policy governing their bathrooms and locker rooms, and it’s the exact opposite of what the Obama administration recently recommended in its guidance on accommodating transgender students. School officials credited the Alliance Defending Freedom (ADF) for both drafting the policy and encouraging them to implement it, but they might someday regret trusting the conservative legal organization.

The “Student Physical Privacy Policy” ADF drafted for Grayson County’s schools is pretty straight-forward. All school bathrooms, locker rooms, and shower rooms must be separated by sex, and “sex” is determined by “anatomy and genetics existing at the time of birth.” It further states that “an individual’s original birth certificate” — emphasis on “original” — can be used as “definitive evidence” of a person’s sex.

If a school wants to accommodate trans students, principals must segregate those students to single-stall restrooms or “controlled use of an employee restroom, locker room, or shower.” They definitely are not allowed to use facilities that match their gender identity.

Superintendent Kelly Wilmore told the conservative outlet LifeSiteNews that his concerns have been “safety and privacy,” not politics. “It’s not that hard to claim that you’re now a transgender student,” he surmised. “All you gotta do is have a note from your parents, go and talk to the principal, and suddenly you’re transgender.”

And Wilmore has a number of reasons he isn’t worried about legal backlash. First, he believes that by segregating and ostracizing trans students, it’s actually protecting them from harassment. Second, he doesn’t think there are any transgender students in the district, so there’s no one to object. But most importantly, he’s convinced that ADF will have his back.

“The policy we adopted was written by the Alliance Defending Freedom organization,” he openly admitted, and they “claim that if we adopt their policy and it is contested,” they will come to the school district’s defense for free.

But it could prove very expensive for the school if ADF loses.

ADF is at the forefront of fighting back against transgender equality in schools. They’ve filed a lawsuit against an Illinois school in hopes of reinstating anti-trans segregation, and they’ve filed suit in North Carolina trying to protect HB2 and its anti-trans restrictions. ADF has also helped draft anti-trans bills in several states, such as South Dakota and Tennessee, which they then lobbied for, promising those states’ schools the same pro bono legal protection.

But as Mara Keisling, executive director of the National Center for Transgender Equality, previously explained to ThinkProgress, “That’s only the legal side; it’s not the damages and penalties. That’s not the lost federal funding. They’re not going to pay the penalties; they’re just going to provide the lawyers.” Some schools may also be required by insurance carriers to use one of their lawyers instead of an outside firm like ADF.

Moreover, the odds of ADF winning a case against a transgender student in Virginia are extremely low. Just last month, the United States Court of Appeals for the Fourth Circuit ruled against a Virginia school district that refused to grant a transgender student access to the facilities that match his gender identity.

Grayson County is thus taking a high-risk gamble by trusting ADF. Passing a policy that blatantly violates how the Departments of Justice and Education enforce Title IX is a provocative invitation for legal action. As a tiny district with 1,684 students, there may be a statistically small chance of there being a trans student, but it might not matter. Just as the Department of Justice is suing North Carolina directly over HB2 instead of waiting for a complainant, so too could Grayson County Public Schools face legal consequences despite not having a trans student objecting to the policy.

So when Wilmore explains, “I don’t know how they can come after me, because no one really can make a complaint because we don’t have anyone in that category,” he’s both undermining the need for the offensive policy and stating something that is flat-out wrong — and his school district might just have to pay the price.