October 26, 2022

Jillian Balow
Superintendent of Public Instruction, Virginia State Department of Education
James Monroe Building
101 N 14th Street
Richmond, Virginia 23218

Re: OPPOSE - American Atheists’ opposition to dangerous and discriminatory
proposed Standards pertaining to trans students

Dear Superintendent Balow and Members of the Virginia State Board of Education:

American Atheists, on behalf of its more than 1,700 constituents in Virginia, strongly opposes the proposed Standards introduced by Governor Youngkin and the Virginia Board of Education (“Standards”) that requires Virginia school districts to oppose and disregard federal Title IX guidance concerning trans students as well as state law. These proposed Standards will undeniably intensify systemic discrimination against trans and gender nonconforming students in Virginia and result in liability for those school districts who adhere to the bad advice promulgated by the Department. As the Virginia Board of Education (“Board”), it is your critical responsibility to ensure the safety and education of ALL students in Virginia public schools. Enacting these Standards would directly violate that duty. On its face, the Standards allows schools to prohibit trans youth from participating in sports with their peers, limit their access to appropriate school facilities for their gender, and misgender and deadname students. We strongly urge you to reject these proposed Standards because these and other provisions directly conflict with both state law and federal Title IX requirements.

American Atheists is a national civil rights organization that works to achieve religious equality for all Americans by protecting what Thomas Jefferson called the “wall of separation” between government and religion created by the First Amendment. We strive to create an environment where atheism and atheists are accepted as members of our nation’s communities and where casual bigotry against our community is seen as abhorrent and unacceptable. We promote understanding of atheists through education, outreach, and community-building and work to end the stigma associated with being an atheist in America. We reject efforts to undermine the education, acceptance, and well-being of gender diverse students based on the religious beliefs of lawmakers and educators.

The Standards stigmatize and openly discriminate against trans students for acting in accordance with their beliefs, health care needs, and gender identity. This type of official disapproval from the state would place a target on the backs of trans children, leaving them far more susceptible to bullying and harassment by their peers and community members as well as discrimination by school staff. The 2015 U.S. Transgender Survey concluded that 17% of the transgender students left a school at least once as a result of such severe mistreatment at a K-12 institution. The survey also described the rampant bullying and harassment that trans students already face, finding that:

• Fifty-four percent (54%) of those who were out or perceived as trans in K–12 were verbally harassed, and 24% were physically attacked; and
• Seventeen percent (17%) of those who were out or perceived as trans were forced out of a K–12 school because the mistreatment was so severe.

The Standards also restrict access to public facilities, such as restrooms. Doing so not only violates Title IX, but also puts students at risk for assault. In fact, trans teens with restricted access bathroom facilities were found to be at a higher risk for sexual assault. 36% of trans and non-conforming teens between the ages of 13-17 with restricted access to public facilities reported being sexually assaulted. Moreover, studies have demonstrated that there has been no link between trans-inclusive policies and increased safety and privacy violations in public facilities. There is simply no data to support these harmful and discriminatory Standards.

Additionally, the Standards allow school officials to intentionally misgender and deadname students. The Standards claim that school officials may only use the student’s correct name and pronouns with a court order. While this may be appropriate for official records, there is simply no good reason to restrict how teachers and staff address students, so long as it is done respectfully. To purposefully misgender and use incorrect pronouns for trans students, which is known to exacerbate gender dysphoria and be psychologically damaging to trans students, is needless cruelty.

Moreover, the Standards further stigmatizes trans children by purposefully excluding them from participating in sports citing physiological unfairness. Data has shown that, especially minors, a person’s genetic make-up and internal and external reproductive anatomy alone are not useful indicators of athletic ability.

In a 2014 survey of trans people, nearly 33% of participants felt very stigmatized when misgendered. Misgendering was also found to result in participants feeling lesser authenticity and lower confidence in their appearance. Deadnaming or using old names for trans people rather than the names they identify with, has similar effects, resulting in depression, suicidal ideation, and suicidal behavior. In comparison to their cisgender counterparts, the 2015 U.S. Transgender Survey showed that 52% of transgender adults who suffered anti-transgender treatment in grades K-12 had attempted suicide at least once by the time they participated in the survey. In contrast, the number of transgender students who did attempt suicide, but did not suffer mistreatment at school dropped by 15%.

Even with a court order affirming a student’s name and pronouns, the Standards still allow school officials to misgender students, supposedly based on their First Amendment rights. Conversely, and tellingly, there is no protection for teachers or staff who assert their First Amendment right to use a student’s preferred name and pronouns -- only if they refuse to do so. Regardless, this supposed First Amendment right for teachers and staff to misgender trans students is not supported by law, it would allow teachers to openly discriminate against trans students in contradiction of Virginia state law and Title IX, and it exposes these students to additional bullying and harassment by their peers. Despite the Standards’ supposed recognition of parent’s rights, when parents support their trans children, the Standards would allow or even require teachers and school staff to act directly against their interests.

Medical authorities have long established that social transition can be medically necessary and beneficial health care for trans youth. However, if trans youth are not protected from harassment based on gender identity and expression, they are more likely to suffer lifelong negative psychological consequences. Overall, these Standards are immensely harmful to trans students, posing both extensive physical and psychological risks. We urge you to reject the Standards and remain mindful of your responsibilities to all students in Virginia, regardless of their gender identity or expression.

The proposed Standards encourage schools to directly violate the legal requirements of Title IX as well as Virginia state law.

Title IX of the Educational Amendments of 1972 establishes that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Title IX applies to all educational institutions that receive federal funding, including the Virginia Department of Education and all Virginia public schools. It ensures equal opportunity in education and protects individuals from the harms of sex discrimination.
In 2020, the Supreme Court clarified in Bostock v. Clayton County that for Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination, protections afforded against discrimination on the basis of sex necessarily include discrimination on the basis of sexual orientation and gender identity. Bostock further elaborated that discrimination based on anatomical or physiological characteristics, such as genitals, gonads, chromosomes, and hormone function is inherently sex-based discrimination. Writing for the majority, Justice Gorsuch concluded that gender identity is “inextricably bound” with sex.

Courts have long held that interpretation of Title IX should reasonably be guided by legal rulings interpreting Title VII. The U.S. Department of Education and U.S. Department of Justice have made clear that this is the case for Title IX; that, in light of Bostock, protections on the basis of sex should be interpreted to include secular orientation and gender identity. Both statutes prohibit sex discrimination, with Title IX using the phrase “on the basis of sex” and Title VII using the phrase “because of” sex. The Supreme Court has used these two phrases interchangeably. Finally, numerous federal courts have relied upon Bostock to recognize that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.

Even prior to the Bostock decision, the majority of federal courts held that Title IX protects trans students from discrimination and, more specifically, that trans students have the right to use restrooms that correspond with their gender identity. In Dodds v. U.S. Dept. of Education, the Sixth Circuit found that a school violated Title IX when it excluded a trans girl from the girls’ restroom – effectively discriminating against a student, based on their trans status. In Whitaker v. Kenosha Unified School District No. 1 Board of Education, the Seventh Circuit found that prohibiting a trans boy from using a restroom that correlated with his gender identity caused irreparable harm and violated Title IX. Finally, in Grimm v. Gloucester County School Board, the Fourth Circuit relied upon the Bostock ruling to find that when a school district prohibited a trans boy from using a restroom that accords with his gender identity, it violated Title IX.

Furthermore, the Standards also require Virginia schools to disregard proposed regulations issued by the U.S. Department of Education regarding compliance with Title IX. These proposed regulations have not yet been made final, but once they are finalized, districts that fail to comply with these regulations are subject to a reduction in state education funding and other penalties.

If adopted, the Standards put Virginia public schools at substantial risk of liability by parents and students under Title IX, put the state public education system at risk for investigation by the Dept. of Education, and risk loss of federal funding for systemic violation of Title IX. This is especially significant considering that Virginia received $2.1 billion in federal funding to support primary and secondary education in 2021. In 2023, Virginia is expected to receive $1.23 billion in federal funding in the form of grants and loans. Because of the clear and intentional conflict between the Standards and the requirements of Title IX and the improper and, frankly, unconscionable targeting of an already vulnerable group of students, it is critical that these Standards be rejected.

The Standards also violate Virginia State law, specifically the Virginia Values Act (“Act”). The Act safeguards all individuals from unlawful discrimination based on a number of protected classes, including sexual orientation and gender identity. The Act also applies to places of public accommodation, which include public schools. Discrimination occurs when schools, on the basis of a protected characteristic, “...refuse, withhold from, or deny any individual, or to attempt to refuse, withhold from, or deny any individual, directly or indirectly, any of the accommodations, advantages, facilities, services, or privileges, or to segregate or discriminate against any such person in the use thereof….” The Standards seek to withhold access to school facilities and sports to trans students, segregate them based on their sex and gender identity, and create a hostile environment for trans students by requiring teachers to misgender and deadname them. The Standards perpetuate the very discrimination the Act was designed to protect against, setting up every Virginia school for liability under state law.

The Virginia State Board of Education has a clear duty: you must reject the proposed Standards and comply with federal and state laws and that protects all Virginia students. The Board must not intensify the unnecessary and cruel victimization of trans and nonconforming students that is being proposed here. If you have any questions regarding American Atheists’ opposition to the Standards, please contact me at bwilliams@atheists.org.

Sincerely,


Brittany Williams
State Policy Counsel
American Atheists