October 26, 2022

President Daniel A. Gecker

Board of Education

Virginia Department of Education

P.O. Box 2120

Richmond, VA 23218

Submitted via townhall.virginia.gov

Re:      Opposition to Proposed 2022 Model Policies Requiring Discrimination Against Transgender and Nonbinary Students

Dear President Gecker:

The Virginia Education Association (VEA) and the National Education Association (NEA) jointly submit these comments on the proposed “Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia Public Schools” (“proposed Model Policies”). VEA is a union of more than 40,000 teachers and school support professionals that has advocated for the betterment of public education in the Commonwealth since 1863. NEA is the national union with which VEA is affiliated, and represents about 3 million members across the United States.

Educators strive every day to ensure that students have what they need to learn and grow, and they work to build school communities where every student is supported and feels a sense of belonging. Educators are committed to these principles and know them to be the vital work of public schools, regardless of the political winds. VEA and NEA have a strong interest in ensuring that all public schools are safe and inclusive environments where all students, no matter what they look like, where they come from, or how they identify can thrive and prepare for their future. It is for this reason that VEA and NEA strongly oppose the proposed Model Policies.

Just last year, Virginia public schools had the benefit of model policies (“2021 Model Policies”) that were developed and informed by community partners that serve LGBTQ+ youth, the Virginia Department of Education, and over 9,000 public comments. The 2021 Model Policies, which affirmed the rights of transgender and nonbinary students to participate in school programs, access gender-separated school facilities, and be referred to by their correct names and pronouns were based on and aligned with well-documented best practices for fostering positive school climates.[1]

The 2021 Model Policies were also consistent with the recommendations of the Centers for Disease Control and Prevention (CDC) best practices “for improving safety and connectedness in schools for both LGBTQ+ youth and their cisgender, heterosexual peers.”[2]  For example, the CDC’s core competencies for school districts includes using affirming pronouns. It is well-established that LGBTQ+ youth fare significantly better in schools with inclusive policies and supportive teachers.[3] The positive effects of inclusive policies that recognize the equality and dignity of all students extend not only to LGBTQ+ students, but also to their cisgender, heterosexual peers. As CDC research has found, “[T]he more LGBTQ-supportive policies and practices a school implements, the better the student health outcomes.”[4]  School climates that are safe and inclusive for LGBTQ+ students are good for all students. VEA and NEA urge that Virginia schools follow the evidence and do more, not less, to combat bullying and oppression of LGBTQ+ students.[5]

In contrast to the 2021 Model Policies, and contrary to the great weight of the evidence and established best practices, the proposed Model Policies would require discredited practices that would harm individual students and degrade school climates. The proposed Model Policies would disregard students’ genders and force them to use school facilities and programs matching their “birth sex,” allow and even require harassment and bullying of transgender and nonbinary students by requiring misgendering, and create barriers for students to change their names and pronouns at schools. While other students may simply inform their teacher if they want to be addressed in a particular manner, the proposed Model Policies would require parental “permission slips” for transgender and nonbinary students – and only these students – in order to be treated with the basic dignity and respect of being called by their names and referred to by their pronouns.

These proposed policies appear to have been developed without reference to any social-emotional pedagogy, mental health expertise, or public health foundation, and merely to further a political agenda. Although the proposed Model Policies are wrapped in a veneer of purported “privacy, dignity, and respect” for students and parents, they are in fact the opposite. They are a sadly familiar tactic of some politicians to target particular groups of people in order to divide and distract from the real needs of our students and communities.

As U.S. District Court Judge Joseph Goodwin eloquently articulated, such policies that ostracize a particular group of citizens are not unfamiliar in our democracy:

A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country’s governments on their own citizens. Out of fear of those less like them, the powerful have made laws that restricted who could attend what schools, who could work certain jobs, who could marry whom, and even how people can practice their religions. Recognizing that classifying human beings in ways that officially sanction harm is antithetical to democracy, the states ratified the Fourteenth Amendment. It ensures that no state may “deny to any person within its jurisdiction the equal protection of the laws.”

B. P. J. v. W. Virginia State Bd. of Educ., 550 F. Supp. 3d 347, 350 (S.D.W. Va. 2021) (granting injunction against state law that barred a transgender student athlete from participating on a sports team consistent with her gender identity, holding that law violated the Equal Protection Clause and Title IX).

The proposed Model Policies pander to fears and lack of familiarity with transgender and nonbinary people to the detriment of some of our most vulnerable students. LGBTQ+ youth report high levels of depression and suicidal ideation. “They are particularly likely to experience feelings of sadness and hopelessness . . . and to be victims of bullying.”^[6] An overwhelming majority (83%) of LGBTQ+ youth report being harassed or assaulted during the 2021-2022 academic year, and more than 80 percent of LGBTQ+ students reported feeling unsafe in school.^[7]   The Trevor Project’s 2022 National Survey on LGBTQ Youth Mental Health found that 45 percent of LGBTQ youth seriously considered attempting suicide in the past year.[8] The effects of hateful laws and policies targeting LGBTQ+ people only exacerbate the stress and trauma experienced by many LGBTQ+ students. Educators and students report threats, bullying, and harassment, particularly in states with new laws that sanction or encourage discrimination against LGBTQ+ people.^[9]  

The proposed Model Policies will also have profound negative impacts on non-LGBTQ+ students. Proposed practices that single out gender nonconforming students for surveillance, invasion of privacy, and harassment threaten equal opportunities for any cisgender girl who is not stereotypically feminine. For example, Utah parents recently called into question a female high school competitor’s gender after she outperformed the field in a statewide competition, and the Utah High School Activities Association has launched an investigation to review the parents’ complaint.[10] Such investigations will often result in traumatic, invasive and unnecessary policing of girls’ bodies. And due to widely held racial and gender stereotypes, such investigations will disproportionately impact Black and brown girls who do not conform to white societal norms.[11]

The proposed Model Policies will not only harm students who already suffer significantly higher rates of discrimination, harassment and bullying, and related poor mental health, but they will also harm educators. These policies are not self-enforcing; they require teachers, school counselors and nurses, and other school staff to carry them out. These policies would compel school staff who care deeply about the well-being of their students to “out” transgender students, regardless of their desire to protect students. It would require staff to harm transgender and nonbinary students by misgendering them, forcing them to use school facilities matching their birth sex, imposing second-class privacy rights, and creating school climates that increase bullying and harassment. This is antithetical to the most fundamental, deeply held values and beliefs of many educators. Treating a particular group of students as less deserving of respect, autonomy and privacy is also at odds with what many educators understand to be core principles of their professional obligation to treat all students with dignity and acceptance for who they are and to foster learning environments based on respect and inclusion.[12]

In addition to harming individual students and educators and degrading school climates, VEA and NEA are concerned that the proposed Model Policies violate Title IX of the Education Amendments of 1972 (“Title IX”) and the Equal Protection Clause of the Fourteenth Amendment. It is well established that Title IX’s prohibition of discrimination on the basis of sex includes discrimination on the basis of gender identity and sexual orientation.[13] Almost a decade ago, the U.S. Department of Education’s Office for Civil Rights (“OCR”),  which is charged with enforcing Title IX, resolved its first case regarding a transgender student’s access to sex-specific facilities at school and sex-specific accommodations during an overnight field trip, with an agreement by the school district to provide the student access to the boys’ facilities and to treat the student the same as other male students in all respects.[14] And in the years following this OCR action, courts have agreed that transgender students are protected by Title IX.[15] In Bostock v. Clayton County, the Supreme Court reasoned that logically, discrimination against someone because they are transgender is necessarily discrimination on the basis of sex. 140 S. Ct. 1731, 1741, 1747 (2020). Following the Bostock decision, in Grimm v. Gloucester County School Board, the Fourth Circuit held that the reasoning of Bostock applies to Title IX. 972 F.3d 586 (4th Cir. 2020) (holding that school board policy denying a transgender student access to bathrooms consistent with his gender identity and refusal to amend his records to reflect his gender violated Title IX and could not survive heightened scrutiny required by the Equal Protection Clause). As the B.P.J. v. W. Virginia State Board of Education court reasoned, citing Grimm to enjoin a state law ban on transgender athletes, a law or policy that discriminates based on transgender status must be based on an “exceedingly persuasive justification.” 550 F. Supp. 3d 347, 354 (S.D.W. Va. 2021) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). It is clear that the proposed Model Policies will require differential treatment of transgender students based solely on their gender identity. Far from providing an “exceedingly persuasive justification” for the proposed Model Policies, the great weight of legal precedent, academic research, and scientific evidence runs counter to these proposed policies and practices. Particularly considering Supreme Court and Fourth Circuit precedent, and the related interpretations of the U.S. Department of Education, it is likely that implementing the proposed Model Policies will subject school districts to costly litigation and risk the loss of federal funding, as a consequence of violating Title IX.

For all these reasons, VEA and NEA strongly condemn the proposed Model Policies and support returning to the 2021 Model Policies. We urge you to reject the cynical and harmful appeal to the politics of division and distraction. Educators who work tirelessly to provide their students with the tools and learning environments they need to reach their fullest potential know that Virginia public school students, families and educators deserve so much better. They deserve evidence-based policies and practices that promote healthy and inclusive school climates for all students. We can and must work together to make our school communities places where every student belongs and has the freedom to be themselves and to achieve their dreams.

 Respectfully submitted,

 /s/ James J. Fedderman

Dr. James J. Fedderman, President

Cathie Lee, Staff Attorney
Moriah Allen, Staff Attorney

Virginia Education Association
116 S. 3rd Street
Richmond, VA 23219

/s/ Alice O’Brien

Alice O’Brien, General Counsel
Keira McNett, Staff Counsel
National Education Association
1201 16^th Street, N.W.
Washington, D.C. 20036