Office of the Superintendent

Virginia Department of Education

P.O. Box 22120

Richmond, VA  23218

RE: Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools

October 26, 2022

Dear Superintendent Balow:

We are writing in response to the “Model Policies for the Treatment of Transgender Students in Virginia” as proposed changes to the Virginia Register. It is critical that Virginia policymakers and schools are acting as partners to parents and protecting families in the Commonwealth.  

Respectfully, we argue that the Department’s case for its proposed policies is based on faulty legal and procedural grounds, and that there is no scientific or legal basis for using “gender” or “sexual orientation and gender identity” instead of “sex” in Virginia policy. The policies proposed fail to address substantial costs and detriments to taxpayers, parents, students (females in particular), medical professionals, women religious employees and institutions as well as troubled and gender dysphoric youth.

Contrary to the aim of giving clarity, the Department’s policy proposal will effectively result in enforcement chaos.  Because the proposal fails to define the wide range of “genders” and “gender identities” listed, it creates ambiguity that will be virtually impossible to enforce.

Also, the definitions presented in the policy proposal, worded as such, are artifacts of a highly tendentious philosophical concept of gender identity. Even a cursory glance at its definitions for concepts such as “gender-diverse”, “gender-fluid,” “nonbinary,” and the like betray an uncritical commitment to an untested and highly controversial gender ideology that is alien to the purposes of the Title IX’s focus sex-based discrimination. Title IX is, of course, one of the legal precedents that this model policy claims to be based on. In fact, this model policy would gut both the letter and spirit of Title IX. Fof instance, the model policy speaks of sex not as a biological category, but of “sex assigned at birth.” It replaces an observable biological trait with a social construct.

Specifically, the policy proposal replaces biological sex with an entirely subjective notion of gender identity independent of the body and empirical observation. The model policy is not based on sound scientific evidence, longstanding legal precedent, or public reason. The wording of the policy could easily lead to innocent, well intentioned students and staff being accused of harassment or abuse when making innocent errors addressing the wide and expanding variety of gender identities, which has no clear limiting principle.  While the aim of the policy, we presume, is to protect students against discrimination, it will inevitably, as written, detract from the central aim of education, which is to teach students in a fair and impartial manner. The Department’s proposed policy, contrary to its goal, would greatly multiply discrimination and harm within the Public School System.

The Department’s model policy prioritizes ideology over both scientific truth and religious freedom and would, contrary to its express purpose, serve to multiply discrimination and harm in education programs and activities. Previously, the US Department of Education recognized that Title IX regulations “presuppose sex as a binary classification” as well as “physiological differences between the male and female sexes.” It is impossible to understand or consistently enforce Title IX in the Commonwealth of Virginia without this basic presupposition.

There is no neutral, empirical way even to discern a gender identity. As a concept, it is an artifact of gender theory, not history or science. According to prominent proponents of such theories, the notion of a “gender binary” is a social construct, not a biological fact. A clear definition of sex is precisely what is needed, especially given the original purpose of Title IX. Without such a definition, the rule can provide no coherent guidance. Supposed gender identities can include “nonbinary,” “transgender,” “cisgender,” “intersex,” “queer,” “asexual,” and “gender-nonconforming.” Very few people could define such categories or pick out individuals who fit under such descriptions. The model policies fail to even suggest how schools could construct policies that recognized these ill-defined distinctions.

Erroneous Application of Bostock

The model policy claims to have a legal basis in recent Supreme Court reasoning, but our nation’s highest court explicitly stated that Bostock v. Clayton County cannot be used to apply to matters beyond employment nondiscrimination under Title VII. The claim of the model policy conflicts with the Court’s own reasoning. In Bostock, the Supreme Court proceeded “on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.” Title VII cannot be applied to the proposed policy because the Supreme court was clear that Bostock v. Clayton County pertained to employment discrimination based upon biological distinctions between the biological sexes—which can be empirically distinguished.  In contrast, the definitions described in the policy are subjective, not biological. Furthermore, the Bostock ruling did nothing to redefine sex, sexual orientation or sexual identity, or to expand sex to include sexual orientation and gender identity.

As the proposed model policy explains, lawmakers’ primary purpose in Title IX was to give women and girls equal opportunities in education. Records of the design and passage of Title IX clearly demonstrate that its intent was to remove barriers to education opportunity that women faced. Title IX’s provisions state: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving Federal financial assistance.”

Appealing to the definition of sex in Title IX to create new policies on the quite different category of sexual orientation, and the highly contested, controversial, and protean notion of gender identity misrepresents the U.S. Supreme Court’s opinion in Bostock and puts the physical safety of girls and women at risk. Hormone treatments, such as puberty blockers, are experimental medical interventions. Research has not demonstrated the effects and long-term outcomes of these treatments, standard practice for other drugs. The policy does not explicitly empower or involve parents to make determinations about their children.  It represents a growing push to grant minors choice about matters that have life altering effects, without parents’ approval, effectively undermining parents’ authority.  Minors cannot give full consent to such life altering and permanent changes. To deny this is to deny the very idea of age of consent, and to abandon any serious commitment to the right of parents to direct the education and health care of their minor children. 

In sum, this model policy is an ill-considered attempt to insert the tendentious doctrines of gender ideology into the regulations governing schools in the Commonwealth of Virginia. It should not be adopted.

Sincerely,

Jay W. Richards, PhD

William E. Simon Senior Research Fellow

The Heritage Foundation