October 26, 2022

Jillian Balow

Superintendent of Public Instruction

Virginia Department of Education

P. O. Box 2120

Richmond, VA 23218

RE: 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (“2022 Model Policies”)

Dear Superintendent Balow,

Penn Carey Law If/When/How: Lawyering for Reproductive Justice, the reproductive justice pro bono organization at the University of Pennsylvania Carey Law School, appreciates the opportunity to provide this comment in response to the Virginia Department of Education’s Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (“2022 Model Policies”). Our student body includes students from the Commonwealth of Virginia and students who intend to practice in the Commonwealth after graduation. For that reason, Penn Carey Law students have a direct interest in commenting on the 2022 Model Policies.   

Penn Carey Law If/When/How is focused on ensuring access to reproductive health care for all. Our work is greatly informed and influenced by the work of advocates of color in the reproductive justice movement who advocate for “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” We recognize that discrimination and stigma often deny transgender individuals these basic human rights.^[1]

With this in mind, Penn Carey Law If/When/How believes that the Virginia Department of Education’s 2022 Model Policies deny its students and parents the same rights the policies purport to protect. With the purported intention to treat transgender students with respect, compassion, and dignity, the 2022 Model Policies, in practice, invalidate transgender students and harm their well-being. Further, we condemn the Department’s decision to bar supportive parents from their right to ensure a gender-affirming environment for their child’s education. These policies stand in stark contrast to the 2021 Model Policies. We urge the Department to maintain the 2021 policies, which seek to eliminate the harassment and discrimination of LGBTQ+ students, protect student privacy, and ensure the individual right to self-expression.

1. Respect, Compassion, and Dignity for Transgender Students

Transgender students deserve respect, compassion, and dignity, as stated in the 2022 Model Policies.^[2] However, if school personnel follow the recommended Sample Policy, those practices will produce the opposite effect. Local students and advocates have emphasized that these policies will promote harassment and gender-based discrimination in the classroom.^[3] Studies show that these concerns are well-founded.

For instance, correct pronoun usage saves lives. A 2022 study revealed that transgender and non-binary youth who lived in a household where everyone respected their pronouns died by suicide at half the rate of youth who did not live with anyone who did.^[4] However, this study also showed that fewer than one out of three transgender and non-binary youth lived in a household where everyone respected their pronouns.^[5] Consequently, schools may be the only gender-affirming space for many transgender students. The 2022 Model Policies view correct pronoun usage as “compelling others to use preferred pronouns.”^[6] However, transgender students are simply asking for a fundamental level of respect that is critical to their mental health and well-being.

In addition, participation in school athletics helps combat depression and anxiety for students.^[7] Although transgender youth want to play sports for these mental health benefits, a 2021 study showed that 68% of transgender and non-binary youth did not participate in sports due to fear of discrimination.^[8] The 2022 Model Policies exacerbate this likelihood of discrimination against transgender students by determining student participation based on sex assigned at birth rather than gender identity.[9] Leaving students to either regularly play on a team that delegitimizes an essential part of themselves or not play at all, the 2022 Model Policies deny transgender students the ability to safely engage in student programming.[10] 

It is critical that the 2022 Model Policies implement practices that demonstrate respect, compassion, and dignity toward a transgender student’s intrinsic sense of self. To provide a foundation that encourages respect, compassion, and dignity for all transgender students, the 2022 Model Policies should accurately frame sex and gender. Currently, the 2022 Model Policies define gender identity as “an ideological belief that gender is a matter of personal or subjective experience, not sex.”^[11] However, gender is a part of everyone’s identity^[12] and essential for how young people perceive themselves.^[13] Like sex assigned at birth, gender identity is not a choice.^[14] The 2021 Model Policies provide an example of how the Virginia Department of Education should best honor these basic tenets. The 2021 policies acknowledge and specifically call out the harassment and bullying faced by LGBTQ+ youth and require schools to provide a safe environment for all students.^[15] In addition to encouraging specific gender-discrimination remedies and protections, the policies mandate student confidentiality and privacy with an eye to preventing discrimination and abuse.^[16]

The 2021 policies also conform with federal guidance and directives that forbid sex-based discrimination and seek to remedy harassment in schools.^[17] The 2022 Model Policies fail to conform with federal guidance by preventing equal access to programs and activities in a way that is consistent with a student’s gender identity.

2. Parental Rights and Children’s Freedoms

The 2022 Model Policies indicate that one of their primary aims is to support a parent’s right to direct the upbringing, education, and control of their children.^[18] However, these same policies significantly limit the rights of those parents who are supportive of their child’s gender exploration, transition, or nonconformity. Notably, the model policies require that any extracurricular activities separated by sex—including athletics—use students’ sex assigned at birth to determine where they will be placed, and that overnight travel accommodations, locker rooms, and bathrooms be divided on the basis of sex.^[19] They limit the name a child may use in school to that provided in writing by a parent or guardian, and do not require school staff, teachers, and other students to use the name and pronouns a child and their family have selected.^[20] It is clear from these policies that a parent who is supportive of their child’s transgender identity has less ability to oversee their child’s upbringing than a family who is critical of it. Supportive parents cannot direct the manner in which their child participates in school activities or the facilities that are available to them, nor can they ensure the use of their child’s correct name and pronouns at school. As such, the 2022 Model Policies provide only an illusory protection of parental rights.

Even if the 2022 Model Policies adequately and uniformly upheld a parent’s right to direct the education of their child, which they do not, they neglect to consider that these rights are not without limitation. While our nation does highly value parental involvement in a child’s education, that right does not supersede a child’s educational freedoms. These freedoms were no better elucidated than in the landmark desegregation cases of the twentieth century, which rebuked the idea that parental rights included the right to preserve a segregated school system.^[21] While these cases dealt with the issue of race rather than gender identity, they demonstrated clearly that the freedom of parents to direct the education of their children must always yield to children’s “freedom to learn.”^[22] The 2022 Model Policies run afoul of this fundamental freedom by denying transgender children who lack parental support an equal opportunity to participate in the public school system. Under these policies, transgender students may not be referred to in the manner they choose without parental consent.^[23] They may not participate in school sports or other extracurriculars, nor use bathrooms or other facilities, in a way that aligns with their deeply held understanding of themselves.^[24] These policies deny all transgender students, but especially those with parents critical of their gender identity, full access to the privileges and benefits of the public school system and therefore undercut their fundamental freedom to learn.

In addition, the 2022 Model Policies provide that no guidance, training, or other material may encourage or instruct teachers to conceal information about a student’s gender identity from their parents.^[25] However, parents do not have a fundamental right under the Fourteenth Amendment to be informed of their child’s gender identity when it differs from their sex assigned at birth.^[26] Policies that instruct teachers to keep a child’s gender identity confidential until they have consented to such disclosure do not undermine parental rights.^[27] In fact, schools have a legitimate interest in choosing not to disclose a child’s name or pronouns to parents when they believe that doing so might subject them to abuse, neglect, or other harm.^[28] By failing to provide procedures to ensure the privacy of transgender students who do not feel safe or comfortable disclosing their gender identity to parents, the 2022 Model Policies do not adequately protect those children who might face repercussions at home.

3. Freedom of Expression

            The Department insists the 2022 Model Policies adhere to the First Amendment. Because the First Amendment “forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs,” the Department claims that the practice of using an individual’s correct pronouns violates principles of religious freedom and forces teachers and students to adopt inconsistent beliefs.^[29] This claim is overbroad and erroneous. The cases cited by the Department in no way implicate the use of another individual’s specific name or pronouns as a compelled ideological belief.^[30] We acknowledge that the Sixth Circuit in Meriwether v. Hartop noted that a university professor at a public university plausibly stated a claim for a violation of First Amendment rights when punished for failing to use a student’s appropriate pronouns.^[31] But the court’s opinion merely allowed the case to proceed in lower courts. The holding of Meriwether was not applied or relied on in a later case, which noted that Meriwether was not binding precedent and illuminated the “distinction between K-12 schools and universities in addressing speech and other constitutional issues.”^[32]

            A far more compelling First Amendment argument protects the freedom of expression of all students by allowing them to use the name, pronouns, and other gender expressive means that best communicate their gender identity. Any restriction on a student’s ability to express themselves consistent with their gender identity causes substantial harm and is worth protecting against.^[33] The 2021 Model Policies acknowledge these harms and note that the policies are consistent with the First Amendment because “schools may not prevent students from expressing their identity.”^[34] The Sixth Circuit in Meriwether is correct that “titles and pronouns carry a message.”^[35] The ability of students to send this message as an expression of their personal belief and identity and have that message met with dignity and respect is the right that deserves protection.^[36] A rule that states otherwise could be met with legal challenge under Title IX and the First Amendment.^[37]

Thank you for the opportunity to comment on these proposed model policies. Please contact our Regulatory Directors, Hannah Stommel, hstommel@pennlaw.upenn.edu, and Kaatje Greenberg, kaatje@pennlaw.upenn.edu, if you have questions.

Sincerely,

If/When/How: Lawyering for Reproductive Justice

University of Pennsylvania Carey Law School