RACIAL EQUITY IN
EDUCATION LAW &
Commonwealth of Virginia
The Virginia Department of Education
Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools
October 26, 2022
The Racial Equity in Education Law and Policy Clinic (the “REEL Policy Clinic”) of Georgetown University Law Center leverages legislative and policy interventions to help remedy racial inequities in public education. The Clinic’s student attorneys engage in legislative lawyering to help advance our clients goals, including challenging long-standing educational inequities that negatively impact the educational outcomes of students of color. This work necessarily includes centering the experiences of LGBTQIA students of color and addressing proposed guidance, practices, laws, and policies that have the potential of deepening entrenched forms of racial subordination and marginalization.
We oppose the Virginia Department of Education’s 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (“2022 Model Policies”) and urge the Department to reinstate the 2021 Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools (“2021 Model Policies”). Our opposition to the 2022 Model Policies is rooted in the intersection of issues implicated by this proposed guidance, including the linked forms racial inequity, gender-based discrimination, and discrimination against sexual minorities that these policies have the potential to foster. As we acknowledge in our work, policies that are harmful to transgender youth also disproportionately impact transgender youth of color and those who experience the compounding effects of multiple forms of discrimination . According to the National LGBTQ Taskforce, Black transgender and gender non-conforming people are subjected to the highest levels of discrimination of all transgender individuals . A recent survey conducted by the Taskforce emphasizes the multiple forms of harm that LGBTQIA youth of color face, with nearly half of all respondents reporting being harassed at school and nearly half of all Black respondents reporting that they had attempted suicide. Thus, any analysis of policies affecting LGBTQIA youth must include a focus on their potential effects for LGBTQIA youth of color.
As written, the 2022 Model Policies have the potential to stigmatize and segregate transgender, nonbinary, and gender-diverse students. For this reason, we echo the sentiment of Robert N. Barnette, Jr., president of the Virginia NAACP: “[T]his policy is painful and resembles the history of segregation in restrooms and other public accommodations and history is at risk of repeating itself” . The painful history that Mr. Barnette refers to includes Virginia’s infamous leadership of southern resistance to school desegregation in the wake of the Brown v. Board of Education ruling, including championing the signing of the Southern Manifesto and creating a template for legislative defiance of federal law through the passage of a slate of laws that served to cling to Jim Crow segregation .
If implemented, the 2022 Model Policies could have the effect of marginalizing vulnerable students. One such example of this potential harm is the Model Policies’ requirement that school personnel “deadname” students–a term that refers to the practice of using a name that a transgender individual has decided to no longer use. Such a practice can have a “stressful and traumatic” impact on the mental health of transgender, nonbinary, and gender-diverse individuals . Moreover, the 2022 Model Policies would require that transgender, nonbinary, and gender-diverse students submit documentation of parental approval to be referred to by their chosen name and pronouns. This proposed policy is overly burdensome and stigmatizing, with the potential of placing an already vulnerable population of students in danger both at home and school. As the National Association of Secondary School Principles has acknowledged, the revealing of a students’ transgender status, deadname, sex assigned at birth, or other protected information to students’ parents, teachers, or classmates may also violate the Family Educational Rights and Privacy Act (FERPA) . Furthermore, policies that discriminate against transgender, nonbinary, and gender-diverse students violate federal law. Title IX of the Education Amendments of 1972, for instance, prohibits discrimination on the basis of sex, which includes discrimination based on sexual orientation or gender identity . As federal courts have previously ruled, school district policies that discriminate against transgender students violate both Title IX and the Fourteenth Amendment’s Equal Protection Clause .
Of equal importance to the potential legal concerns raised by the language of the 2022 Model Policies are the policies’ potential impact on the well-being of transgender, nonbinary, and gender-diverse students. According to a 2022 study from the Journal of Counseling Psychology, the mere introduction of anti-transgender legislation was associated with higher levels of anxiety and depressive symptoms among LGBTQIA individuals, particularly for transgender, nonbinary, and gender-diverse individuals . Additionally, a 2018 study from the Journal of Adolescent Health found that using transgender youth’s “chosen name in multiple contexts affirms their gender identity and reduces mental health risks known to be high in this group,” including “fewer depressive symptoms and less suicidal ideation and behavior” . A policy that requires school personnel to refer to transgender, nonbinary, and gender-diverse students by their deadnames not only poses potential implications for civil rights law but also poses life-threatening harm that could jeopardize the mental health of transgender, nonbinary and gender-diverse youth.
It is our Clinic’s position that the 2022 Model Policies introduce the potential for further harm to students by reinforcing sex-based binaries that perpetuate stigma and harassment against transgender, nonbinary, and gender-diverse students. These practices of stigmatizing and segregating students based on their sex, gender identity, and perceived or stated sexual orientation perpetuate what legal scholars have called “state-sanctioned violence” against transgender youth . Data from the Gay, Lesbian, Straight Education (GLSEN) Alliance’s 2019 National School Climate Survey underscores this reality, noting that 30% of LGBTQIA students in Virginia schools report experiencing discrimination while attempting to use a bathroom aligned with their gender . Practices included in the 2022 Model Policies, if adopted, would codify this discrimination, undoubtedly alienating transgender youth and signaling for LGBTQIA students that a culture of harm outweighs their own safety.
In a recent report, the Center for American Progress and the Fenway Institute highlight the potential ramifications of practices like those included in the 2022 Model Policies, noting that “[b]eing able to use a public bathroom is a fundamental requirement for equal access to opportunities for education, employment, or socialization” . To be clear: There is no evidence that allowing individuals to use facilities based on their gender identity affects bathroom safety for others . Conversely, policies that allow transgender students to participate in activities and use facilities that align with their gender identity can promote the safety and well-being of all students .
For the reasons stated herein and for the harmful impact that the 2022 Model Policies would very likely have on LGBTQIA youth of color, we urge the Virginia Department of Education to reinstate the 2021 Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools. The 2022 Model Policies must be rejected outright, as they introduce the possibility of stigmatizing and segregating transgender, nonbinary, and gender-diverse students–an already vulnerable and marginalized student population in need of policies that prioritize, not diminish, their equitable access to meaningful educational experiences in Virginia. We implore the Virginia Department of Education to join us in fostering a public education system where students holding marginalized identities are affirmed, not punished, in their experiences and development.
The Racial Equity in Education Law and Policy Clinic
Antonio Coronado, Supervising Attorney & Clinical Teaching Fellow
Nikola Nable-Juris, Supervising Attorney & Clinical Teaching Fellow
Janel George, Clinic Founder & Director
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 Catherine Schaefer et al., Discriminatory Transgender Health Bills Have Critical Consequences for Youth, Child Trends (April 21, 2022), https://www.childtrends.org/publications/discriminatory-transgender-health-bills-have-critical-consequences-for-youth.
 NewsOne Staff, Virginia Student Walkout Draws Attention to ‘Devastating Levels of Discrimination’ Among Black Trans Population, NewsOne (September 27, 2022), https://newsone.com/4417532/virginia-student-walkout-black-trans-people/.
 Press Release, Virginia NAACP, Virginia NAACP Condemns Governor Youngkin’s Transgender Policy (Sept. 19, 2022), https://naacpva.org/virginia-naacp-condemns-governor-youngkins-transgender-policy/.
 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change 72, 29 (University of Chicago Press 1991).
 Why Deadnaming Is Harmful, The Cleveland Clinic (Nov. 18, 2021), https://health.clevelandclinic.org/deadnaming/.
 NASSP, Position Statement on Transgender Students (2016), https://www.nassp.org/top-issues-in-education/position-statements/transgender-students/.
 Press Release, U.S. Department of Education, U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity (June 16, 2021), https://www.ed.gov/news/press-releases/us-department-education-confirms-title-ix-protects-students-discrimination-based-sexual-orientation-and-gender-identity.
 Bostick v. Clayton County, 140 S.Ct. 1731, 1741 (2020).
 Grimm v. Gloucester County Sch. Bd., 972 F.3d 586 (4th Cir. 2020).
 Sharon G. Horne, et al., The Stench of Bathroom Bills and Anti-Transgender Legislation: Anxiety and Depression Among Transgender, Nonbinary, And Cisgender LGBQ People During a State Referendum, 69 J. Counseling Psych. 1–13 (2022), https://psycnet.apa.org/record/2021-60687-001.
 Stephen T. Russell, et al., Chosen Name Use is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior among Transgender Youth, 63 J. Adolescent Health 503-505 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6165713/.
 Gaby Wilson, “Does God Bless Your Transsexual Heart?” Anti-Transgender Bathroom Bills as a Newer Form of State Sanctioned Violence, 3 How. Hum. & Civ. Rts. L. Rev. 105 (2019).
 GLSEN, 2019 State Snapshot: School Climate for LGBTQ Students in Virginia (2021), https://www.glsen.org/sites/default/files/2021-01/Virginia-Snapshot-2019.pdf.
 Timothy Wang et al., Policy Brief: State Anti-Transgender Bathroom Bills Threaten Transgender People’s Health and Participation in Public Life, Center for American Progress & The Fenway Institute (2016), https://fenwayhealth.org/wp-content/uploads/2015/12/COM-2485-Transgender-Bathroom-Bill-Brief_v8-pages.pdf.
 Amira Hasenbush, Andrew R. Flores, & Jody L. Herman, Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, 16 Sexuality Res. Soc. Pol’y 70-83 (2019), https://link.springer.com/article/10.1007/s13178-018-0335-z.
 Resiner SL et al., Discrimination and Health in Massachusetts: A Statewide Survey of Transgender and Gender Nonconforming Adults, The Fenway Institute (2014), https://fenwayhealth.org/documents/the-fenway-institute/policy-briefs/The-Fenway-Institute-MTPC-Project-VOICE-Report-July-2014.pdf.