My wife and I have both lived in Virginia for nearly fifty years. We sent both of our sons to Virginia public schools and never experienced a situation where a small subset of students were targeted for political advantage. The Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools published by Youngkin administration are a step backwards into the 19th century. They should be scuttled and the Model Policies published in March 2021 should be left in place.

I have particular concerns with the discussion of the First Amendment, the definitions, the process, and the political games that have brought us to this point.

First Amendment:Section V.c. Development is indefensible nonsense.

These 2022 Model Policies adhere to the First Amendment. The First Amendment forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs. Practices such as compelling others to use preferred pronouns is premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex. Many Virginians reject this belief. Additionally, the First Amendment guarantees religious freedom and prohibits compelling others to affirm ideas that may be contrary to their personal religious beliefs.

This paragraph is fundamentally confused about First Amendment freedoms, suggesting that freedom of belief overrides the legitimate constraints on teachers expressing personal and religious views in a classroom. Referring to beliefs on sex and gender, the Model Policy observes:“Many Virginians reject this belief.” 

The First Amendment protects your right to hold beliefs, or reject them. That doesn’t translate into a First Amendment right to teach in public schools while expressing those beliefs. Many Virginians may also still be racists, and may still find religious support in the Bible for their beliefs. See Donald Trump, the Bible, and White Supremacy | Harvard Divinity School (HDS)  But the First Amendment does not authorize those teachers to advocate White Supremacy in their classroom. In a related matter, they may have religious beliefs about the circumstances surrounding creation, but they should be required to affirm that the universe is billions of years old if they want to teach science.

Another matter. Let's take a moment to consider the constraints on Free Expression here: “Compelling others to use preferred pronouns.” Why should religious freedom supersede ordinary courtesy in a classroom? Religious folks are becoming desperate in their search for ways to characterize themselves as victims when they are actually perps.

In summary, the 2022 Model Policies, unlike their predecessor, do NOT adhere to the First Amendment.

Definitions: The definitions are a malevolent muddle.

-”The phrase “transgender student” shall mean 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.”  

The definition is inaccurate. Parental permission in writing does not create a transgender student where one did not previously exist. A persistent and sincere belief is not a prerequisite and need not be demonstrated to any public official.

Is “biological sex” a euphemism for sex at birth? The definition creates and then leaves unresolved the question of when and whether “biological sex” has been transformed by medical procedures. The definition introduces political considerations  into decisions should be medical.

(For that matter, the 2022 Model policy is a model of careless drafting. There are four definitions: two include “shall mean”s, another “means”, and another “is”.)

These definitions implement an indefensible policy through confusing and inaccurate definitions.The section on terminology in the March 2021 Policy is clearer, more complete, more useful and better reflects the complexities involved in the use of language. It should be restored.

Process: The process for developing these guidelines has been confusing, ambiguous or worse. The information provided in the Virginia Town Hall could be interpreted to mean that the March 2021 policy has already been rescinded. The Virginia Town Hall indicates that the planned effective date for the proposed Model Policies is October 27th, the day after the comment period closes. Over sixty thousand comments have been provided so far, but there is no discussion of how these comments will be considered, or for how long the newly effective Model guidelines will remain in place before they are superseded after another round of revisions that reflect the current round of public input. Plenty of confusion and uncertainty for the School Districts that will be considering implementation of the 2022 Model policy, particularly because it appeared after the school year had already started.

Political Bias: Bias against transgender students is not a job requirement for Republican governors or administrations. Consider the following from Spencer Cox, Governor of Utah, on the occasion of his veto of a bill of a bill banning transgender students from sports: 

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state. https://www.washingtonpost.com/lifestyle/2022/03/23/utah-cox-transgender-athlete-veto/

Maybe gratuitous cruelty has become a job requirement for Republican presidential aspirants. Our current Governor can best become Trump lite, or DeSantis lite, since Youngkin does not have a pliant legislature like Florida. The Model Policy is still a disgraceful display of cruelty and cynicism. Virginians know what Youngkin is like; the rest of the country will find out in due course.

Perhaps policies like this one will “fire up the base.” Perhaps they will appeal to under- informed middle-of-the-roaders who are indifferent to the cruelties deployed against transgender students, and think that controversies will go away if only transgender students go back into the closet, or their assigned restrooms, as the case may be. It’s more likely that policies like this one will strengthen the opposition, encouraging people to educate themselves on manufactured controversies and join in the defense of transgender students.

Thank you

John Cross

Burke VA