Dear Superintendent Balow:

This letter presents comments on the “Model Policies for the Treatment of Transgender Students in Virginia” as proposed changes to the Virginia Register. These proposed changes contain important protections for families and children and critical revisions that must replace existing state policy.

Existing Virginia policy exchanges biological sex for the ambiguous ideas of “gender” and “sexual orientation and gender identity,” and these policies reject the hard-earned rights of women in American law, culture, and education through the adoption of Title IX of the Education Amendments of 1972.[1] Furthermore, equating the unscientific definition of “gender” with biological sex puts women’s physical safety at risk. With some adjustments that are provided at the end of this comment, the proposed model policies would strengthen parents’ consent concerning their children’s health care, without creating potential conflicts with federal laws.

The proposed model policy provides reference to the idea that lawmakers’ primary purpose in Title IX, which 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.[2] 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.”[3] These amendments contain provisions for K–12 and postsecondary schools, not employment, which is the focus of Title VII of the Civil Rights Act.

The U.S. Supreme Court’s recent decision in Bostock v. Clayton County applies to Title VII, which protects Americans from employment discrimination.[4] Thus, the existing Virginia policy that confuses “sex” with “sexual orientation” and “gender identity” not only misrepresents the biological differences between men and women, but it is also not supported by the correct reading of the Court’s decision in Bostock. The Court’s opinion states that an employer cannot terminate an individual’s employment solely because the individual chooses to “assume” a “transgender” identity opposed to his or her biological sex.

Justice Neil Gorsuch wrote specifically in Bostock that Americans would be wrong to “worry that our decision will sweep beyond Title VII to other federal or state laws” because “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”[5] Gorsuch went on to write: “The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’”

Thus, any application of the Court’s opinion in Bostock to other provisions in state or federal law, such as the existing Virginia guidance regarding “transgender” students, is without warrant.

Second, replacing “sex” with “gender” puts minors at risk. School officials who allow students who assume a different “gender” to use sex-segregated spaces of their choice are allowing biological males to use female facilities, including bathrooms and locker rooms. This is an invasion of girls’ privacy and threatens their safety. Responding to complaints from parents, doctors and politicians in the United Kingdom have urged schools not to allow boys to use girls’ bathrooms.[6] Media reports quote parents saying that their school-aged daughters are refusing to attend school for fear that boys will see them in the bathroom. Reports of minor-age girls stating publicly that they do not want to take their clothes off in front of boys in a bathroom surfaced in Illinois, after a school board adopted a policy that allows boys to use girls’ bathrooms.[7]

Furthermore, allowing individuals to use bathrooms of the opposite sex causes undue conflict between children. For example, boys (who did not report any gender confusion) in an Alaska school took advantage of the school’s policy that allows opposite-sex bathroom access and posted messages online saying they intended to use the girls’ bathrooms.[8] A group of boys then attempted to enter a girls’ bathroom, which resulted in a physical fight between a girl and a boy.[9] The girl did not want the boys in the girls’ bathroom, and the boys were abusing the bathroom-access policy.

In Vermont, two girls asked a biological male who said he was a transgender girl to leave their bathroom while they were changing clothes.[10] The girls told the media that the biological boy was watching them change their clothes. According to one parent, “The biological child was not changing and sat in the back and watched girls getting changed. That made girls feel uncomfortable, made girls feel violated and not protected.”

The replacement of “sex” with the ambiguous idea of gender in state policies allows biological males to participate in female athletic competitions, which has resulted in injury to girls due to aggressive contact. In Guam, a boy assuming the opposite gender injured three girls in a rugby match. His participation was already a violation of the World Rugby Transgender Guidelines.[11] In other physical contests, men have severely injured women. In 2018, a male mixed-martial-arts fighter claiming to be a woman competed against a female fighter and broke her orbital bone (eye socket). The male fighter later posted on social media: “And just so you know, I enjoyed it.”[12]

Joanna Harper, a competitive runner, consultant for the International Olympic Committee, medical doctor, and a biological male who competes as a female, said that “allowing [boys to compete in girls’ athletics] with their serious testosterone-based advantage threatens the very fabric of women’s sport.”[13] World champion athletes who have supported LGBTQ rights, such as Martina Navratilova, have also argued that boys should not be allowed to compete in women’s sports.[14]

Third, using “gender” instead of “sex” weakens parents’ consent for critical health decisions made about their children. Some schools are already withholding information about children changing their pronouns, names, and “gender.”[15] In New Jersey, for example, school officials do not have to receive parental consent before encouraging students to assume a different gender or telling them to seek medical treatment for gender dysphoria.[16] In Kansas, Topeka Public Schools’ “Guidelines for Transgender Students at School” states: “School personnel should not disclose information that may reveal a student’s transgender status or gender nonconforming presentation to others, including parents…”[17] Chicago Public Schools’ “Supporting Gender Diversity Toolkit” states the school district takes a “gender-affirming approach,” and lists among its resources for students the Broadway Youth Center, which provides medical services including “gender-affirming hormone therapy.” The toolkit makes clear that parents are not a necessary partner in the process: “If a student and/or a student’s parent(s)/guardian(s) does not desire a Student Administrative Support Team or Gender Support Plan, the Support Coordinator will work with the student and/or student’s parent(s)/guardian(s) (if they are involved) to coordinate gender-affirming supports without the aforementioned tools.”[18] (Emphasis added.)

In 2019, Planned Parenthood announced it was opening 50 “Wellbeing Centers” in high schools across Los Angeles in partnership with the school district[19] to provide contraception, “reproductive health” services, and “social/emotional well-being” resources to students.[20] Students do not have to obtain parental consent to access such services in California. Planned Parenthood offices across the country offer “gender affirming care,”[21] though it is unclear whether such services are currently offered in Planned Parenthood’s school-based Wellbeing Centers. However, as one parent recounts, student communication with Planned Parenthood representatives provides easy access to such services. Students can text Planned Parenthood employees, who tell them how to make appointments for “gender-affirming care” and the nearest clinic for obtaining it.[22]

Moreover, although Planned Parenthood does not provide cross-sex hormones and therapy to children under the age of 16, the organization refers students of minor age to UCLA’s Gender Health Program.[23] That program instructs children that chest binders, medications to suppress menstruation, voice therapy to change voice pitch, and hair removal are options that are “appropriate at any age,” and that hormone therapy options are “typically pursued in the teenage years.” The type of social transition that some schools support while leaving parents in the dark—which would likely be encouraged under policies that interpret “sex” to mean “gender”—is the entry point to pharmacological gender transition, which can then be the gateway to surgical transition. The UCLA office goes on to explain that options “typically pursued later in adolescence or adulthood” include “surgery to change the appearance and function of the genitals” and “surgery to remove reproductive organs (ovaries, uterus, testicles)” among other procedures.[24] Notably, the existing drugs that doctors are giving people for medical transitions are experimental. There are no rigorous studies using randomized control trials to document the effects of using hormone therapies and puberty blockers on minors who struggle to understand their sex.[25] Doctors are using these treatments without reliable evidence on the outcomes of these interventions.

According to Emily Bazelon in The New York Times Magazine, which obtained access to the World Professional Association for Transgender Health’s (WPATH’s) latest guidelines before the guidelines were released to the public last summer, researchers expressed concern about the current medical interventions that doctors are using on minors who are confused about their sex. Bazelon writes:

The final version of [WPATH’s] chapter said that because of the limited long-term research, treatment without a comprehensive diagnostic assessment “has no empirical support and therefore carries the risk that the decision to start gender-affirming medical interventions may not be in the long-term best interest of the young person at that time.”[26]

Despite the lack of research, there is reason to believe that such interventions will become more common in K–12 school-based clinics, and that existing state policies that redefine “sex” as “gender” would widen the information gap between parents and their children. Advocates of cross-sex hormones and puberty blockers see a clear connection between access to “gender-affirming” medical treatments and President Joe Biden’s Administration’s proposed Title IX rewriting. As explained in the Harvard Law Review:

"[L]ack of access to gender-affirming care continues to mitigate trans youths’ access to sex-segregated school bathrooms and locker rooms. The Biden Administration is expected to reinstate the Obama Administration’s 2016 Title IX guidance that required schools to allow students to use facilities consistent with their gender identities. Even so, there are reasons to think access to gender-affirming medical care is still relevant to determining trans youths’ access to such facilities. First, trans youth may be less comfortable coming out as transgender to their peers and school officials if they have not started medical transition. Second, school districts and courts may be more willing to accept in practice a trans student’s use of facilities consistent with their [sic] identified gender if they [sic] have provided evidence of being diagnosed with dysphoria or undergoing gender-affirming medical treatment."[27]

In some cases, schools are putting children on this path without parental consent, cutting parents out of the decision-making process, so that by the time parents are involved in medical interventions it is too late to reverse course. By excluding parents from these essential conversations, schools are not acting as partners to parents.

Furthermore, new and more rigorous research than has previously been conducted finds that access to cross-sex hormones and puberty blockers increases teen suicide rates. A study by my Heritage Foundation colleague Jay Greene finds that easing minors’ access to cross-sex interventions is associated with a 14 percent increase in the adolescent suicide rate. [28]

Current state policies that reinterpret “sex” to mean “gender” would further erode parents’ decision-making authority about their children’s health while supporting policies that could do long-term harm to children.

Research finds that when parents are more involved in their child’s education, students will experience positive outcomes. A study of one of Florida’s private school scholarship programs, a program through which parents are engaged in choosing the child’s school, finds that 95 percent of parents report “kids now try their best, stay out of trouble, pay attention in class and are safe in the hallways of their schools of choice.”[29] In general, surveys find that parents who choose a school for their children are more satisfied with their students’ learning experience than parents who do not choose where and how their children learn.[30] Parents also report higher levels of school safety when they are empowered to choose a private school for their children.[31] For example, in Washington, D.C., parents and students participating in the nation’s only federally-funded private school scholarship program, the Opportunity Scholarship Program (DC OSP), reported higher levels of school safety after attending a new school using a K-12 private school voucher.[32]

For these reasons, the proposed Model Policies for the Treatment of Transgender Students in Virginia Public Schools is nothing short of an essential replacement for existing state policy.   The proposed model policy for Virginia could be strengthened with the following changes:

• On page 16, item D.6., all school personnel should be allowed to use a student’s name instead of a pronoun.
  
  
• On page 17, item G.2., no modifications to this policy exist in federal law, so the reference to such modifications should be removed.
  
  
• On page 18, item H.1., no modifications to this policy exist in federal law, so the reference to such modifications should be removed.

There is no scientific, evidence-supported basis for using “gender” or “sexual orientation and gender identity” instead of “sex” in Virginia policy. Such usage misrepresents the U.S. Supreme Court’s opinion in Bostock and puts girls and women in danger of harm. 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. Virginia policymakers should abandon existing policy and replace it with the proposed model policy, along with the suggested changes listed here.

Sincerely,

Jonathan Butcher
Will Skillman Fellow in Education
The Heritage Foundation