I submit this comment in opposition of the proposed 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia Public Schools. I oppose the 2022 Model Policy on the grounds that they violate the law, and in doing so, seek to cause significant harm to the transgender and gender-nonconforming community. I ask the Virginia Department of Education to reinstate the 2021 Model Policy to protect the life and quality of life of every transgender student like myself. 

The issues with the 2022 Model Policy are severe, and cannot understated. 

The 2022 Model Policies define far fewer terms regarding gender identity than the 2021 Model Policies. The 2021 Model Policies defined eleven scientifically-backed and LGBTQ+-inclusive terms surrounding gender identity. The 2022 Model Policies define only two terms regarding gender identity: “sex” and “transgender student.” 

Neither of these definitions meet the evidence-based best practices as is required in Va. Code § 22.1-23.3(A). Sex is defined as “biological sex” in the 2022 Model Policies. The 2022 Model Policies also define “transgender student” as “a public school student whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs with his or her sex, that their child be so identified while at school.” Both these definitions use outdated and scientifically incorrect terminology in defining the trans identity. The 2022 Model Policies’ definitions and terminology cannot meet the evidence-based best practices requirement.

Notably, the 2022 Model Policies define being trans as depending on parents’ recognition instead of the student’s self-identification. They further call being trans the student’s “belief” which reinforces the false narrative that being trans is a choice as opposed to a deeply held knowledge and realization of one’s identity. It further operates on a male/female binary by using the term “his or her” that is demonstrably and scientifically false as it erases the existence of intersex and nonbinary people. This shift in definitions completely strips trans children of the self-determination of their identity in Virginia’s public schools.

This is wrong because my transness was not a choice, and instead is a fundamental part of who I am - and certainly not something that I should be discriminated for. 

The 2021 Model Policies further prohibited “any and all discrimination, harassment, and bullying based on an individual’s actual or perceived . . . sexual orientation, gender identity, or any other characteristic protected by law.” The 2021 Model Policies also required that “[a]ny incident or complaint of discrimination, harassment, or bullying shall be given prompt attention” and that “[c]omplaints alleging discrimination, harassment, or bullying based on a student’s actual or perceived gender identity shall be handled in the same manner as other discrimination or harassment complaints.” Finally, the 2021 Model Policies required the establishment of a school contact for both students and parents should the complaint be “not resolved at the school level.”

The 2022 Model Policies make disappointing and harmful changes to bullying, harassment, and discrimination policies. First, it removes the explicit protections for sexual orientation and gender identity. Instead, the only gender identity term it protects explicitly is “sex” which is defined by the 2022 Model Policies as “biological sex.” While the bullying, harassment, and discrimination prohibitions also protect “any other characteristic protected by law,” the removal of sexual orientation and gender identity as explicit categories sends a clear message: VDOE does not care about LGBTQ+ youth being bullied, harassed, or discriminated against.

Second, the 2022 Model Policies require that “[s]chool personnel shall be trained annually on health and mental wellness support to, and safety of, all students.” This is a drastic change from the 2021 Model Policies which required “[a]ll school mental health professionals shall be trained annually on topics relating to LGBTQ+ students, including safety and support for LGBTQ+ students.” The 2022 Model Policies therefore explicitly erase required training for staff on LGBTQ+ health and mental well-being. 

Thankfully, the 2022 Model Policies keep the language of the 2021 Model Policies that “[a]ny incident or complaint of discrimination, harassment, or bullying shall be given prompt attention, including investigating the incident and taking appropriate corrective and/or disciplinary action, by the school administrator.” It also keeps the language that “[t]he [School Division’s Designated Contact] shall be available to hear concerns from students and parents when complaints are not resolved at the school level.” It also adds additional language that “[b]ullying of any student by another student, for any reason, cannot be tolerated in our schools. Intervening immediately to stop bullying on the spot can help ensure a safer school environment for all students.”

Stopping bullying for any student is an important goal for Virginia’s K-12 public schools. My concern is that gender identity and sexual orientation are no longer explicitly protected classes under the 2022 Model Policies and that school personnel are no longer required to obtain LGBTQ+ specific health and mental wellness professional development. In fact, it feels like VDOE is bullying the very trans kids they are claiming to protect by removing resources and policies aimed at supporting and protecting them.

Further still, The 2021 Model Policies allowed school staff to “consider the health and safety of the student in situations where students may not want their parents to know about their gender identity,” a protection that the 2022 Proposed Model Policies remove. While schools are indeed required to comply with FERPA, and parents do have a recognized right to their children’s educational information, those rights are not absolute when they endanger those children’s wellbeing. Further, the 2021 Model Policies permitted disclosure of a student’s gender identity only to other school personnel when there was a legitimate educational interest. The 2022 Model Policies require outing trans students to their parents along with school staff with a legitimate educational interest.

As the 2021 Model Policies acknowledged, disclosing a transgender student's gender identity to an unsupportive family “can pose imminent safety risks, such as losing family support or housing.” A recent study by the Trevor Project reported that 38% of transgender girls, 39% of transgender boys, and 35% of nonbinary youth surveyed had experienced homelessness and housing instability at some point in their lives. ( Homelessness and Housing Instability Among LGBTQ Youth, The Trevor Project, https://www.thetrevorproject.org/research-briefs/homelessness-and-housing-instability-among-lgbtq-youth-feb-2022/.) These rates are disproportionately greater for non-white LGBTQ+ youth. Id. 16% of LGBTQ+ youth reported running away because of fears of abuse, 14% reported that they were kicked out or abandoned by parents or caregivers. Id. 

The United States Supreme Court has found that “a State's interest in safeguarding the physical and psychological well-being of a minor is compelling,” and as a result has “sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” New York v. Ferber, 458 U.S. 747, 756 (1982).

The new policy could be read to force disclosure of a student’s gender identity even when that disclosure endangers the student.

Even worse, The 2022 proposed Model Policies present contradictory standards regarding the identification of students. While III(D)(1) states that “Every effort should be made to ensure that a transgender student wishing to change his or her means of address is treated with respect, compassion, and dignity in the classroom and school environment,” the guidelines which follow require school staff to misgender (use the wrong pronouns for) and deadname (use the wrong name for) transgender students unless their parents specifically request otherwise in writing. For a student with an unsupportive family, that requirement presents an impossible hurdle.

Forcing staff to use names and pronouns that do not match a student’s presentation and identity will cause real harm. Respecting trans students’ preferred names improves their mental health and lowers suicidal ideation and attempts. (Stephen T. Russell et al., Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth, Journal of Adolescent Health https://www.sciencedirect.com/science/article/pii/S1054139X18300855). Additionally, if the proposed guidelines are applied consistently, they could expose any child who goes by a name other than their legal name of record to embarrassment and bullying.

The 2021 Model Policies required school records to display a student’s legal name and sex assigned at birth. The school may have been required to report that information in some situations, but the policies included a recommendation to adopt practices that “avoid inadvertent disclosure of such information.” The 2022 Model Policies removed the recommendation to adopt practices that avoid inadvertent disclosure of name and gender identity when reporting. The 2022 Model Policies also changed the language referring to “sex assigned at birth” to “biological sex”

Under the 2021 Model Policies, schools were required to use the preferred name and pronouns of a student on the school records that the student or parent requested. Under the 2022 Model Policies that requirement has been removed. This will negatively impact the academic and social performance of trans students, because studies show that students experience better mental health outcomes when school officials respect their gender and use their chosen names. https://www.sciencedirect.com/science/article/pii/S1054139X18300855. 

Under the 2022 Model Policies, schools are no longer required to change the name and gender identity of a student upon verification. The only way to change a student's name and/or gender marker is by a student or parent submitting a legal document reflecting such a change.

The 2021 Model Policies provided students an absolute right to dress in a way consistent with their gender identity or expression. However, the 2022 Model Policies impose a caveat to that right– and that caveat is concerningly vague. Namely, the 2022 Model Policies permit students to dress in any manner but requires that such manner must be “consistent with maintaining a respectful, distraction-free environment which supports a focus on learning for all students.” 

Such vagueness may be a means to a discriminatory end. The 2022 Model Policies may allow schools to impose dress code limitations based on gender expectations because going against that expectation may be deemed a “distraction.” This vagueness gives schools and individual teachers too much power and discretion at the expense of targeting trans, non-binary, and gender-nonconforming students’ attire.

The vagueness in the 2022 Model Policies may also violate the Due Process Clause of the Fourteenth Amendment to the federal Constitution. Since the new policy does not provide any guidance to students as to what constitutes a “respectful, distraction-free environment,” an ordinary student will not understand what that phrase means regarding attire.

On the subject of facilities, The 2021 Model Policies unequivocally required students to provide access to facilities, such as bathroom and locker rooms, corresponding with their gender identity. Additionally, the 2021 Model Policies required schools to provide, upon request from any student voicing privacy concerns, access to single-use/gender-inclusive facilities or another reasonable accommodation. These policies aligned with federal law which requires schools to allow students to use facilities corresponding with their gender identity. 

The 2022 Model Policies blatantly violate federal law. See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020). These policies require students to use locker rooms, bathrooms, overnight travel accommodations, and other intimate spaces based upon their “biological sex.” Practically, this violation means trans students will be subject to humiliation, harassment, and even violence by using a facility that does not align with their gender identity. Not to mention, this will force certain trans students to out themselves by using a school facility they have likely not used in years. 

The 2022 Model Policies require that access to facilities be made in respect to federal law, but blatantly contradict them. For example, the 2022 Model Policies require bathroom access based on “biological sex” as indicated by the student’s record which is in direct opposition to Grimm. The 2022 Model Policies require districts to break the law while trying to save face and tell them to follow it within the very same paragraphs.

The 2021 Model Policies required that “[s]chools shall eliminate the practice of segregating students by gender to the extent possible.” These policies also required that when event participation was sex-segregated, school districts had to “allow students to participate in a manner consistent with their gender identity.”

The 2022 Model Policies remove the provision requiring schools to eliminate sex-segregation as much as possible. Now, these policies require that sex-segregation be based on biological sex as opposed to gender identity. While the 2022 Model Policies state, “[School Division] shall provide reasonable modifications to this policy only to the extent required by federal law,” they require districts to break federal law while trying to save face and tell them to follow it within the very same paragraphs.

The 2021 Model Policies contained over sixty resources for the treatment of trans students in Virginia’s K-12 public schools. The resources provided considered the needs of school divisions, professional development, students, parents, and advocacy organizations. The sources provided were up-to-date and many centered on trans students’ needs in particular, drawing from LGBTQ+ organizations such as GLSEN, the Human Rights Campaign, the Trevor Project, the National Center for Transgender Equality, and PFLAG. The resources provided in the 2021 Model Policies also drew from professional associations and government agencies such as the American Psychological Association, the Virginia School Boards Association, the U.S. Department of Health and Human Services, and the U.S. Department of Education.

However, the 2022 Model Policies removed essentially all the above resources. Instead, they replaced the other resources with nine resources focused almost entirely on the parental roles in bullying prevention. Eight of these resources come from the U.S. Department of Health and Human Services, largely from the Centers for Disease Control in particular. The other resource comes from the U.S. Department of Justice. The 2022 Model Policies do not contain a single resource from LGBTQ+ advocacy groups, and none are tailored specifically toward trans students.

Preventing the bullying of all students, especially trans students, is an incredibly important goal for Virginia’s public schools. However, it is not the only issue that trans students face. By removing all resources from LGBTQ+ advocacy groups in the 2022 Model Policies, VDOE sends its message loud and clear: it cares more about the parent’s role in bullying prevention, and not at all about the resources it can provide trans and other LGBTQ+ students in navigating bullying, harassment, and discrimination.

The 2022 Model Policies are going to significantly harm trans students. The 2022 Model Policies define being a trans student as “a public school student whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs from his or her sex, that their child be identified while at school.” It takes the power away from trans, nonbinary, and gender-nonconforming students from realizing their identity in their own right and instead defines it in terms of parents’ views. It also refers to gender identity as a “belief” instead of a deeply held knowledge and realization of one’s identity. This promotes a false narrative based on a lack of scientifically-based research. It also erases the identity of nonbinary and intersex people by operating on a male/female binary.

The 2022 Model Policies also remove sexual orientation and gender identity as explicitly protected classes for bullying, harassment, and discrimination. At the same time, it eliminates specific school personnel professional development for the health and well-being of LGBTQ+ students.

Outside of this, the 2022 Model Policies dangerously require misgendering and deadnaming trans students when the student’s preferred name and pronouns are not accurately reflected on student records. Some studies have shown that use of a trans student’s preferred name not only assists with social transition, but also reduces mental health risks such as depression, and suicidal ideation and attempts. https://www.jahonline.org/article/S1054-139X(18)30085-5/fulltext. 

Trans students are also placed in danger of being outed. The 2021 Model Policies allowed disclosure, with a legitimate educational interest, only to other school personnel. The 2022 Model Policies permit disclosure, with a legitimate educational interest or when required by law, to other school personnel and the student’s parents. Many times, students feel safer coming out to school staff instead of their own parents. I believe the choice should rest with the trans student on who they would like to come out to.

As a transgender student myself, who was born and raised in the public school system of Virginia, I voice my total and complete opposition to any policy that threatens the fundamental freedoms that all people should possess. The 2022 Model Policy threatens the life and quality of life of every transgender youth, and indeed, if the Virginia Department of Education cannot recognize this, then they have none of the qualifications to be working with Virginia's youth.