It’s been about a month since the last twist in the controversy over a Harrison County assistant principal confronting a transgender student for using the boys restroom.
The twist: the county Board of Education reversed its March decision to fire Lee Livengood, the Liberty High assistant principal.
Now, Harrison Superintendent Mark Manchin says Michael Critchfield, the transgender student whom Livengood confronted, is now using a private restroom rather than the boys’ one.
Manchin said that’s in accordance with his school system’s still-unwritten policy — both before the November restroom incident and now — that transgender students may use only a private facility or the restroom matching their birth sex.
Critchfield had been using the boys restroom before the Livengood incident.
Transgender restroom access policies are being left up to county school systems, led by elected school boards, because no one outranking these bodies has made the decision for them.
In 2016, the Obama administration issued a nationwide directive that said transgender students — while they can be offered private facilities — must be allowed to use the restrooms that match their gender identities if they so desire.
That year, West Virginia Attorney General Patrick Morrisey fought the directive in court. Three county school superintendents in the state said their counties didn’t plan to follow the directive, while most of the other 52 county superintendents stayed silent or didn’t take a clear position.
In 2017, the Trump administration withdrew the Obama administration’s directive.
Amid all this, the unelected West Virginia Board of Education, which can use its constitutional power to create policies that counties must follow, hasn’t established a clear policy either granting, or denying, transgender students the right.
Some of the state board members, who are appointed by governors and confirmed by the state Senate, have said they favor keeping the board unelected to protect it from politics.
Transgender restroom rights have been politically controversial. But they’re not very controversial among health care professionals.
“Access to single-sex facilities that correspond to one’s gender identity is a critical aspect of social transition and, thus, successful treatment for transgender and gender dysphoric individuals,” said a recent court filing from the American Medical Association, American Academy of Pediatrics, American Psychiatric Association and others in defense of a Pennsylvania high school’s restroom access policy.
About half of transgender teen boys have attempted suicide at least once, according to a September study in Pediatrics, the official journal of the American Academy of Pediatrics.
Dave Perry, president of the state school board, said he believes — though this isn’t based on polling — that a majority of people support the status quo. He said that status quo is that individual counties get to make the decision on granting or denying transgender restroom access.
“I’m a firm believer in majority should rule,” Perry said. “And it is time that the minority quit dictating to, or quit making policy for, the majority.”
Debra Sullivan, another state board member, said “it’s incumbent on all of us to treat everyone with dignity and respect and that’s what I would want for every one of our children in our schools. And I think that’s just where I’d like to leave it.”
She declined to specify whether she believes treating a transgender student with “dignity and respect” means allowing them to use the restroom that matches their gender identity.
Harrison transgender policy still being debated
Manchin, the Harrison superintendent, said there’s “still a bit of confusion” over how Critchfield was told that he had that now-rescinded right to use the facility matching his gender identity.
“Regardless, Michael understood that he could, and that was not articulated to Mr. Livengood, and that was the issue,” Manchin said. One of Livengood’s lawyers had said Liberty High’s principal had granted Critchfield the right to use the boys restroom without telling Livengood.
Another issue: Livengood had sued Manchin and the board, arguing that state law already guaranteed him a continuing contract, not the probationary one the board tried to cancel. Board President Frank Devono Jr. said the board conceded to this argument, and gave Livengood a continuing contract.
Such a contract might still be able to be terminated, but Manchin said “as far as I’m concerned, as far as the Board of Education is concerned, the issue is now behind us and we’re moving forward.”
Loree Stark, legal director for the American Civil Liberties Union of West Virginia, which has represented Critchfield, didn’t respond Friday when asked whether Critchfield is now being denied access to the boys restroom, or whether he simply now wants to use the private facility the county has given him.
The ACLU and Harrison school system are continuing to disagree over the school system’s new written policy for how it will deal with transgender and gender non-conforming students.
Stark said the most problematic continuing disagreements over the policy concern restroom access, which still isn’t clearly explained in the policy, and a part requiring notifying a parent or guardian that their child wants to be called a new name.
The two-page policy says principals “will instruct necessary parties to refer to the student using the Preferred name and Preferred Pronoun” and says a “gender support plan” will be created for the student. But, for the name change, the policy says a parent or guardian must first sign a “preferred name request form,” and the gender support plan must be provided to the parent or guardian.
“Which is really, frankly, unsafe for a lot of students,” Stark said of the notification requirement. “It’s essentially outing them to their parents or guardians. A lot of students don’t have supportive environments at home like Michael does.”
Fairness West Virginia, an LGBTQ rights organization, has worked with the ACLU in speaking with the school system.
“If a young person is comfortable telling their teacher that they’re transgender but not their parent, that should probably say something,” said Billy Wolfe, communications specialist for Fairness. “It should say that the young person is afraid of telling their parents.”
Manchin said he feels “strongly that a parent needs to be a party to that discussion.” He expressed concern about a parent finding out elsewhere, perhaps from another child or at the grocery store.
The written policy says a parent or guardian signature is required on the preferred name request form, but Manchin said that, even without the signature, his school system will honor the child’s wishes.
“Right now, it’s not permission,” Manchin said. “It’s notification.”