The 2022 Model Policies violate Virginia Code § 22.1- 23.3. The statute provides that requires any model policies to be grounded in the science and data surrounding what practices result in the best outcomes for students. The science and data are clear: Policies that force trans and non-binary students into situations in which they may be "outed" against their will, policies that prohibit schools from using gender affirming names and pronouns, policies that prohibit access to facilities based on gender identity, WILL result in harm to these children. Trans and non-binary children are "had significantly higher rates of depression, suicidal ideation, and suicide attempts relative to cisgender students.” (National Institute of Health, Differences in Suicide Risk Among Subgroups of Sexual and Gender Minority College Students (Sept. 8, 2020)). Discriminatory treatment plays a large role in these results.
The model policies won't protect children from bullying. But they will result in policies that violate Grimm v. Gloucester Co. School Board. The Grimm ruling establishes that intentional discrimination against transgender students – that is, treating them differently than other students because of their transgender identity – implicates the Equal Protection clause and the requirements of Title IX. The court made clear that there is no basis in fact or evidence for school boards to employ discriminatory bathroom policies like the one included in the 2022 Model Policies, and that such policies are based on “sheer conjecture and abstraction.” Instead, the court found that all evidence – including the experiences of numerous school districts in Virginia and across the country that had implemented inclusive facility access policies – supports the conclusion that inclusive policies harm no one and provide significant benefit to transgender students. The court found that this evidence “put the lie to supposed legitimate justifications for restroom discrimination: preventing students who pretend to be transgender from obtaining access to opposite gender restrooms and protecting privacy.” By requiring school boards to implement a litmus test to determine who may use the restroom aligned with their gender identity, the 2022 Model Policies will inevitably result in discrimination that violates the holdings of Grimm. The 2022 Model Policies thus invite lawsuits that will waste taxpayer money and will put school staff in the impossible position where they may be required to violate clearly established law.