Agencies | Governor
Virginia Regulatory Town Hall
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Department of Education
 
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State Board of Education
 
Guidance Document Change: Every day, throughout the Commonwealth of Virginia, educators and school leaders work to ensure that all students have an opportunity to receive a high-quality education. As a part of that work, educators strive to meet the individual needs of all students entrusted to their care, and teachers work to create educational environments where all students thrive. The Virginia Department of Education (the “Department”) recognizes that each child is a unique individual with distinctive abilities and characteristics that should be valued and respected. All students have the right to attend school in an environment free from discrimination, harassment, or bullying. The Department supports efforts to protect and encourage respect for all students. Thus, we have a collective responsibility to address topics such as the treatment of transgender students with necessary compassion and respect for all students. The Department also fully acknowledges the rights of parents to exercise their fundamental rights granted by the Fourteenth Amendment of the U.S. Constitution to direct the care, upbringing, and education of their children. The Code of Virginia reaffirms the rights of parents to determine how their children will be raised and educated. Empowering parents is not only a fundamental right, but it is essential to improving outcomes for all children in Virginia. The Department is mindful of constitutional protections that prohibit governmental entities from requiring individuals to adhere to or adopt a particular ideological belief. The First Amendment of the U.S. Constitution guarantees religious freedom and prohibits the government from compelling speech that is contrary to an individual’s personal or religious beliefs. The Department embarked on a thorough review of the Model Policies Guidance adopted on March 4, 2021 (the “2021 Model Policies”). The 2021 Model Policies promoted a specific viewpoint aimed at achieving cultural and social transformation in schools. The 2021 Model Policies also disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students, including transgender students. With the publication of these 2022 Model Policies (the “2022 Model Policies”), the Department hereby withdraws the 2021 Model Policies, which shall have no further force and effect. The Department issues the 2022 Model Policies to provide clear, accurate, and useful guidance to Virginia school boards that align with statutory provisions governing the Model Policies. See Code of Virginia, § 22.1-23.3 (the “Act”). Significantly, the 2022 Model Policies also consider over 9,000 comments submitted to the Department during the public comment period for the 2021 Model Policies.
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10/26/22  11:39 pm
Commenter: Professor Craig Konnoth, Spencer Haydary, Max Larson

Comprehensive Comment Part 2 - Opposing
 

II. The 2022 Model Policies Violate the Authorizing Statute

 

A. The 2022 Policies Violate the Procedural and Evidentiary Requirements            of the Authorizing Statute

 

The 2022 Model Policies were issued under the putative authority of Virginia Code § 22.1-23.3. This provision tasks VDOE with “develop[ing] . . . policies … that address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards.” Va. Code § 22.1-23.3(A). As Delegate Marcus B. Simon, the statute’s introducing sponsor, explained in a Subcommittee meeting, any policies issued by the VDOE should “use the best and latest in science and social science to understand how [to] meet [transgender] students’ needs.”[1] The 2021 Model Policies were developed in consultation with numerous experts, provided paragraphs of narrative citing studies, government findings, surveys from LGBTQ+ advocacy organizations, and policy recommendations. See, e.g., 2021 Model Policies, supra, at 9-11. They linked to over sixty resources for a variety of stakeholders including LGBTQ+ advocacy organizations. 2021 Model Policies, supra, at 22-25.

 

By contrast, the 2022 Model Policies do not rely on resources or research on transgender students; they cite to only nine studies largely focused on the parental role in bullying prevention. 2022 Model Policies, supra, at 10-12, 18. Indeed, the 2022 Model Policies touch on issues which the legislature noted were not within the competence of the VDOE. The authorizing statute notes that VDOE may only regulate “participation in … activities and events and use of school facilities” which “do not include athletics.” Va. Code § 22.1-23.3(A)(8) (emphasis added). The sponsors of the bill in the Senate and in the House of Delegates adopted the exclusion because athletic regulation historically fell within the purview of the VHSL.[2][3] Nonetheless, while the 2021 Policies defer to the VHSL, the 2022 Policies dictate participation in athletics based on “biological sex.” 2022 Model Policies, supra, at 18.

 

B. The 2022 Policies Violate the Substantive Goals of the Authorizing               Statute

 

The statute’s history makes clear that its purpose was to support and protect the ability of transgender children to self-identify. The sponsor of the statute wanted VDOE to examine “the current best practices, what does the science say is the best way to treat students who are transgender . . . and what can we do to make their educational experience as positive as possible for them . . . .”[4] The 2022 Model Policies undermine that purpose in numerous ways.

 

  • Bullying, Discrimination, and Harassment: The 2022 Model Policies removed the 2021 Policies’ protections for perceived gender identity in cases of BHD from peers. 2022 Model Policies, supra, at 17. In Virginia, 78% of LGBTQ+ students have heard negative remarks about their gender expression, 58% have experienced verbal harassment, 23% have experienced physical harassment, and 9% have experienced physical assault.[5] Trans youth in particular face higher rates of BHD surrounding their gender identity and expression compared to their cisgender peers.[6] By removing gender identity as an explicitly protected class, the 2022 Model Policies leave transgender students vulnerable. See 2022 Model Policies, supra, at 15. Protection from school personnel: In Virginia, nearly a third of students have heard negative remarks from school personnel, and report being prevented from using bathrooms and locker rooms aligning with their gender identity; 17% were “prevented or discouraged” from dressing against gender expectations.[7] The 2021 Policies put in place requirements to educate teachers and school personnel about trans students to ensure that personnel would treat trans students with respect and dignity. The 2022 Policies strip away those protections.
  • Failure to Support Social Transitioning: Gender dysphoria “refers to the distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender.”[8] As the American Academy of Pediatrics explains, social transitioning, such as public identification of one’s gender and using pronouns, names, dress, grooming standards, bathrooms, and facilities corresponding with one’s gender is one of the most important means of treating gender dysphoria.[9] Respecting transgender students’ preferred name and pronouns lowers rates of depression and suicidal ideation, anxiety, and increases social acceptance.[10] Failing to do so creates emotional distress, worsened mood, and lower self-esteem.[11] Similarly, denying trans youth the use of bathrooms consistent with their gender identity can result in dehydration, fasting, avoiding bathroom use, urinary tract infections, stigma, depression, and suicidal ideation.[12] By stripping away the 2021 Policies regarding school records, access to facilities and events, and dress codes, among other  protections that aid social transitioning, the 2022 policies risk the wellbeing, health, and lives of trans students.
  • Support for Families: Nearly half of LGBTQ+ youth who are out to their parents report that “their families make them feel bad for being LGBTQ.”[13] These youth are over eight times more likely to attempt suicide if they experience familial rejection in adolescence and are nearly six times more likely to experience depression.[14] Trans youth face are more likely to have frayed familial relationships, and experience parental abuse, and homelessness.[15] This results in a rate of homelessness among LGBTQ+ individuals that is more than double that of their heterosexual and cisgender peers as the result of family rejection.[16] On the flipside, as the 2021 Policies note, “transgender youth with supportive families experience a 52 percent decrease in recent suicidal thoughts and a 46 percent decrease in suicidal attempts.”[17]

Recognizing this crisis, the 2021 Policies adopted a delicate approach, requiring school staff to balance the short-term goal of protecting students with the “long-term goal of assisting the family in developing solutions in their child’s best interests.” 2021 Model Policies, supra, at 13-14. This included providing resources to students with non-supportive families, providing similar resources to families, and to “seek opportunities to foster a better relationship between the student and their family, and provide close follow-ups with the family and student.” Id. at 14. The 2021 Policies devoted an entire Appendix to support parents. See id. at 22-25 (Appendix A). The 2022 Policies strip away these supports from the families of transgender students, leaving transgender students themselves deeply vulnerable.

 

(This is the second part of four for our comments. Per Va. Code §2.2-4002.1(C), we request a written response to this comment from VDOE via electronic publication and to delay the effective date of the 2022 Model Policies by thirty days)

 



[1] Bill on Treatment of Transgender Students, H.B. 145, 2020 Sess. (Va. 2020), https://sg001-harmony.sliq.net/00304/Harmony/en/PowerBrowser/PowerBrowserV2/20221011/-1/12966#agenda_ (VA House Pre K-12 Subcommittee) 7:29:26-7:29:34.

[2] As another Senator noted: “[T]he legislative history on this bill is gonna show it was introduced with the word athletics, and that was stricken.” Bill on Treatment of Transgender Students, S.B. 161, 2020 Sess. (Va. 2020) https://virginia-senate.granicus.com/ViewPublisher.php?view_id=3 (VA Senate Education and Health Committee, Jan. 16, 2020 8 a.m. at 8:22-8:39. See also Bill on Treatment of Transgender Students, S.B. 161, 2020 Sess. (Va. 2020)https://virginia-senate.granicus.com/ViewPublisher.php?view_id=3 (VA Senate Regular Session, Jan 21, 2020 1:08:42-1:09:53) (Senator Boysko clarifying in response to a question that deference to VHSL was appropriate); id. at 1:48:16-1:48:52 (amendment agreed to after inserting phrase “activities and events do not include athletics.”).

[3] Bill on Treatment of Transgender Students, H.B. 145, 2020 Sess. (Va. 2020), https://virginiageneralassembly.gov/house/chamber/chamberstream.php 1:47:15-1:47:38.

[4] Bill on Treatment of Transgender Students, H.B. 145, 2020 Sess. (Va. 2020) https://sg001-harmony.sliq.net/00304/Harmony/en/PowerBrowser/PowerBrowserV2/20221011/-1/12966#agenda_ (VA House Pre K-12 Subcommittee) 7:28:56- 7:29:12 (emphasis added).

[5] 2019 State Snapshot: School Climate for LGBTQ Students in Virginia, Gay, Lesbian & Straight Educ. Network (2019), https://www.glsen.org/sites/default/files/2021-01/Virginia-Snapshot-2019.pdf.

[6] See, e.g., Stephen T. Russell et al., Adolescent Health and Harassment Based on Discriminatory Bias, 102(3) Am. J. Pub. Health 493, 493-95 (2012).

[7] 2019 State Snapshot, supra, note 5.

[8] Gender Dysphoria Diagnosis, Am. Psychiatric Ass’n, https://www.psychiatry.org/psychiatrists/cultural-competency/education/transgender-and-gender-nonconforming-patients/gender-dysphoria-diagnosis; see also, Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451 (5th ed. 2013).

[9] See, e.g., Brief of Am. Acad. of Pediatrics et al. at 14, Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020) (No. 18-35708), 2019 WL 1261905; see also Lily Durwood et al., Mental Health and Self-Worth in Socially Transitioned Transgender Youth, 56(2) J. Am. Acad. of Child and Adolescent Psychiatry 116 (Feb. 2017) (finding that trans students who socially transition have better mental health outcomes than their peers who do not socially transition).

[10] Anna Martha Vaitses Fontanari et al., Gender Affirmation is Associated with Transgender and Gender Nonbinary Youth Mental Health Improvement, 7(5) LGBT Health 237, 243-45 (2020).

[11] See, e.g., Stephen T. Russell et al., Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation, and Suicidal Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (Feb. 1, 2018); see also Camille Brown et al., “It Makes Such a Difference”: An Examination of How LGBTQ Youth Talk About Personal Gender Pronouns, 32(1) J. Am. Ass’n Nurse Pracs. 70, 77-78 (Jan. 2020) and Kevin A. McLemore, Experiences with misgendering: Identity Misclassification of Transgender Spectrum Individuals, 14(1) J. Self & Identity 51, 68-70.

[12] Myeshia Price-Feeney et al., Impact of Bathroom Discrimination on Mental Health Among Transgender and Nonbinary Youth, 68 J. Adolescent Health 1145 (2021); see also Lance S. Weinhardt et al., Transgender and Gender Nonconforming Youths' Public Facilities Use and Psychological Well-Being: A Mixed-Method Study, 2 Transgender Health 149 (2017) (finding restrictions on what bathrooms trans students can use likely leads to less-safe school and bathroom environments for trans students and can lead to more stigma, more discrimination, lower resilience, lower self-esteem, and a lower overall quality of life). Brief of Fairfax Cnty. Sch. Bd. et al. at 5, Grimm v. Gloucester Cnty. Sch. Bd., 976 F.3d 399 (Mem) (4th Cir. 2020) (No. 19-1952), 2019 WL 6341090.

[13] Hum. Rts. Campaign, 2018 LGBTQ Youth Report, 5 (2018), https://assets2.hrc.org/files/assets/resources/2018-YouthReport-NoVid.pdf; see also The Costs of Coming Out: LGBT Youth Homelessness, Lesley Univ., https://lesley.edu/article/the-cost-of-coming-out-lgbt-youth-homelessness (last visited Oct. 19, 2022) (showing that 50% of LGBTQ+ teens report negative parental reactions upon coming out).

[14] See Ctr. Am. Progress, Gay and Transgender Youth Homelessness by the Numbers (June 21, 2010), https://www.americanprogress.org/article/gay-and-transgender-youth-homelessness-by-the-numbers/. 

[15] Sabra L. Katz-Wise, Margaret Rosario, & Michael Tsappis, LGBT Youth and Family Acceptance, 63(6) Pediatric Clinic N. Am. 1011, 1014 (Dec. 2016).

[16] LGBTQ+ Youth Homelessness, Nat’l Network for Youth, https://nn4youth.org/lgbtq-homeless-youth/ (last visited Oct. 19, 2022).

[17] 2021 Model Policies, supra, at 14 (citing Ryan et al., Family Acceptance in Adolescence and the Health of LGBT Young Adults, 23(4) J. Child & Adolescent Psych. Nursing 205, 208 (Nov. 2010)).

CommentID: 202904