EPPC Scholars Comment Supporting 2022 Model Policies (Part 2/3)

Guiding Principle B: Schools Shall Serve the Needs of All Students.

We fully support the emphasis on serving the needs of all students. This is a necessary corrective to past policies that privileged the desires of a small group of students over the legitimate needs and concerns of other members of the school community. We appreciate the teamwork approach that anticipates collaboration among “appropriate school staff and other caregivers … with the parents” as they work towards implementing “reasonable accommodations or modifications” which take into account both “the resources and staff available in the school and school divisions, as well as the rights and needs of other students and of school staff.” We applaud the policy’s specific recognition that accommodations and modifications for individual students also must respect the rights and needs of other students and staff. In particular, the guidance recognizes that schools “should” provide access to “single-user bathrooms and facilities” for the sake of all students who need additional privacy. This is not a “transgender” issue, but rather encourages schools to recognize and accommodate various individual needs of students. Moreover, allowing students of the opposite sex into intimate facilities risks creating a hostile environment and violating Title IX of the Education Amendments of 1972.

Guiding Principle C: Schools Shall Partner with Parents.

Past policies have given lip service to this principle, while implementing practices that effectively locked parents out of decisions related to their child’s wellbeing once the school doors were shut behind the child. We support the policy’s clear statement—which aligns with the Virginia Code and U.S. Constitutional law—that “[p]arents are a child’s primary and most important educator,” and that while “public schools, teachers, counselors, and administrators” play an “essential” role in the child’s education, they do so only in partnership with parents.

Guiding Principle D: Schools Shall Respect All Students.

We support the model policy’s specific recognition that schools have a duty towards all students (rather than the loudest or most politically organized subset of students) to ensure an educational environment free from discrimination and harassment—on the basis of sex. Prohibitions of discrimination on the basis of sex are long-standing protections in law and are grounded in the immutable nature of sexual difference between males and females. We are grateful for the 2022 Model Policies’ grounding in this scientific reality and oppose prior attempts to elevate the subjective sense of “gender identity” to the status of a civil right that supersedes sex-based protections. Respecting all students means respecting students as girls, students as boys, and students as people of faith, many of whom cannot in good conscience accept gender ideology.

Terminology

Parent or Parents

We appreciate and support the 2022 Model Policies’ inclusion of the statutory definition of “parent” or “parents.”[1]

“Sex” Means Biological Sex

The 2022 Model Policies are correct to define “sex” to mean “biological sex.”[2]

The basics of sex determination are relatively clear. Sex, in terms of male or female, is identified by the organization of the organism for sexually reproductive acts. Langman’s Medical Embryology concisely explains how the sex of a new organism is determined at fertilization: “An X-carrying sperm produces a female (XX) embryo, and a Y carrying sperm produces a male (XY) embryo. Hence, the chromosomal sex of the embryo is determined at fertilization.” A new human organism of a particular sex is created at that moment. Scientists now know that “the presence of a Y chromosome determines maleness and its absencedetermines femaleness.” This is because the Y chromosome ordinarily carries the SRY (“sex-determining region on Y”) gene. The SRY gene contains a transcription factor known as the testis-determining factor, which directs the formation of the male gonads.

Sex as a status—male or female—is a recognition of the organization of a body designed for dimorphic sexual reproduction. More than simply being identified on the basis of such organization, sex is a coherent concept only on the basis of that organization. The fundamental conceptual distinction between a male and a female is the organism’s organization for sexual reproduction. The conceptual distinction between male and female based on reproductive organization provides the only coherent way to classify the two sexes.

Lawrence Mayer and Paul McHugh highlighted the same truth in a recent review of the scientific literature on sexuality and gender identity:

The underlying basis of maleness and femaleness is the distinction between the reproductive roles of the sexes; in mammals such as humans, the female gestates offspring and the male impregnates the female.... This conceptual basis for sex roles is binary and stable, and allows us to distinguish males from females on the grounds of their reproductive systems, even when these individuals exhibit behaviors that are not typical of males or females.

Mayer is a past scholar-in-residence in the Department of Psychiatry at Johns Hopkins University and a retired professor of statistics and biostatistics at Arizona State University. McHugh is a professor of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine, and for twenty-five years was the psychiatrist-in-chief at the Johns Hopkins Hospital. The editor of the New Atlantis, in the introductory note to their report, called McHugh “arguably the most important American psychiatrist of the last half-century.”

After explaining the “binary and stable” conceptual basis for maleness and femaleness, Mayer and McHugh note that a structural difference for the purposes of reproduction is the only “widely accepted” way of classifying the two sexes:

In biology, an organism is male or female if it is structured to perform one of the respective roles in reproduction. This definition does not require any arbitrary measurable or quantifiable physical characteristics or behaviors; it requires understanding the reproductive system and the reproduction process. Different animals have different reproductive systems, but sexual reproduction occurs when the sex cells from the male and female of the species come together to form newly fertilized embryos. It is these reproductive roles that provide the conceptual basis for the differentiation of animals into the biological categories of male and female. There is no other widely accepted biological classification for the sexes. 

This fundamental difference in organization is what allows scientists to distinguish male from female. When Dr. Deanna Adkins called this “an extremely outdated view of biological sex” in her declaration to a federal court in North Carolina, Dr. Mayer responded in his rebuttal declaration: “This statement is stunning. I have searched dozens of references in biology, medicine and genetics—even Wiki!—and can find no alternative scientific definition. In fact, the only references to a more fluid definition of biological sex are in the social policy literature.” Just so, yet the 2021 Model Policies adopted a wholly subjective and amorphous understanding of the person, based on gender identity, divorced from scientific realities.

Here is how one scholar put it in Best Practice and Research: Clinical Endocrinology and Metabolism:

Females enter puberty earlier and undergo a more rapid pubertal transition, whereas boys have a substantially longer growth period. After adjusting for dimorphism in size (height), adult males have greater total lean mass and mineral mass, and a lower fat mass than females. These whole-body differences are complemented by major differences in tissue distribution. Adult males have greater arm muscle mass, larger and stronger bones, and reduced limb fat, but a similar degree of central abdominal fat. Females have a more peripheral distribution of fat in early adulthood; however, greater parity and the menopause both induce a more android fat distribution with increasing age. Sex differences in body composition are primarily attributable to the action of sex steroid hormones, which drive the dimorphisms during pubertal development. Oestrogen is important not only in body fat distribution but also in the female pattern of bone development that predisposes to a greater female risk of osteoporosis in old age.

The result is that male and female bodies differ not only in their sex chromosomes (XX and XY) and in their organization for reproduction, but also, on average, in size, shape, bone length and density, fat distribution, musculature, and various organs including the brain. These secondary sex differences are not what define us as male or female; organization for reproduction does that. But this organization leads to other bodily differences. There are organizational differences and organism-wide differences in organs and tissues, as well as differences at the cellular and molecular levels. 

The 2022 Model Policies should clarify that biological sex is based ultimately on genetics. 

Transgender Student

The 2022 Model Policies state “[t]he phrase ‘transgender student’ shall mean a public school student whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs with his or her sex, that their child be so identified while at school.”[3] Given the mandate from the Virginia legislature to create policies regarding the treatment of “transgender” students, it is essential for the 2022 Model Policies to incorporate and define the term “transgender.”

However, we note that the Virginia Code section’s use of the term “transgender student” is itself problematic, as there is no medical or mental health diagnosis of “transgender,” only a diagnosis of “gender dysphoria” under the DSM-5-TR. Revised terminology in the DSM-5-TR relevant to the diagnosis of gender dysphoria include the following: “‘desired gender’ is replaced with ‘experienced gender’; ‘natal male/natal female’ with ‘individual assigned male at birth’ or ‘individual assigned female at birth’; and ‘cross?sex treatment regimen’ with ‘gender?affirming treatment regimen.’”[4] The 2022 Model Policies’ definition of “transgender student” provides clear notice to school districts, parents, and students as to who is covered by aspects of the policy that pertain specifically to “transgender students.” By its terms, this definition reinforces the importance of parental involvement in a matter as significant as the child’s public expression of an identity that differs from his or her sex and respects parental judgment on the timing and manner of such a disclosure.

The 2021 Model Policies, in contrast, define transgender as “[a] self-identifying term that describes a person whose gender identity is different from their sex assigned at birth. A transgender girl is a girl who was presumed to be male when she was born, and a transgender boy is a boy who was presumed to be female when he was born. Note that there is a wide range of gender identities in addition to transgender male and transgender female, such as nonbinary.”[5] The 2021 Model Policies exceeded the statutory mandate by crafting policies that addressed a wide variety of self-defined “gender identities,” including those that were expressly defined as falling outside the definition of “transgender.” For example, they note that “Nonbinary may be considered a subset of transgender or a distinct identity. Other similar terms may include genderqueer, gender fluid, agender, or Two-Spirit.” These policies were stretched to apply to these identities, even though they were expressly acknowledged to be “distinct” from a “transgender” identity.

In addition, the cultural definitions of “transgender” vary widely and could lead to significant inconsistencies across school districts, absent the 2022 Model Policies’ definition.

For example:

• The Human Rights Campaign defines “transgender” as “people whose gender identity is different from the sex assigned to us at birth.”[6]

• GLSEN, an LGBTQ advocacy group which creates model policies for schools, defines “transgender” as “people whose gender identity does not match their sex assigned at birth.”[7]

• WPATH, a transgender health advocacy group, links the term “transgender” with “gender diverse,” resulting in broad recommendations for psycho-social, medical, and surgical interventions for school-age children who are simply “gender non-conforming,” meaning they feel like they don’t fit in with stereotypical notions of masculinity or femininity.

• Recent proposed regulations by the U.S. Department of Health and Human Services said the term “‘transgender’ is being used as an umbrella term to encompass individuals with transgender, nonbinary, gender diverse identities.”[8]

The 2022 Model Policies’ definition of “transgender student” clearly indicates that no student can self-define as “transgender” nor can a student insist on being identified as transgender at school without parental permission. These are important changes that for the benefit of students and parents alike.

Nevertheless, the 2022 Model Policies’ definition of “transgender student” should be modified to read as follows: a public school student whose parent has requested in writing that their child has a persistent desire to identify as a person of the other sex without improper motive, and that it is the parent’s wishes that their child be so identified while at school.” This is consistent with Va. Code § 22.1-23.3 and the Supreme Court’s Bostock decision which presume a binary and biological understanding of sex and transgender.

Development

We support the immediate withdrawal of the 2021 Model Policies. As explained above, these policies are harmful and unlawful.

We also support the 2022 Model Policies’ “confidence in parents to prudently exercise their fundamental right under the Fourteenth Amendment and the Virginia Constitution to direct the upbringing, education, and control of their children.” [9] As well as its recognition that the “primary role of parents is well established and beyond debate. Empowering parents is essential to improving outcomes for children.”[10]

We support the statement in Section V.C. about compliance with the First Amendment, which “forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs” and “guarantees religious freedom and prohibits compelling others to affirm ideas that may be contrary to their personal religious beliefs.”[11]

We applaud the specific reference resisting the compelled use of preferred pronouns. With increasing numbers of children identifying as transgender, this issue is becoming prevalent in the school context across the country. Multiple teachers have been fired over their refusal, based on their religious beliefs, to use preferred names or pronouns in violation of school policy (even in cases where they opt to not use pronouns altogether to avoid unintentionally giving offense).[12] Such adverse employment actions have been found to be unlawful. For example, the Sixth Circuit in Meriwether v. Hartop (discussed more below) recently held that a state university policy requiring a teacher to use a student’s preferred pronouns in opposition to the teacher’s sincerely held religious beliefs violated the First Amendment Free Speech and Free Exercise Clauses.[13]

We ask that the 2022 Model Policies clearly recognize the First Amendment free speech and free exercise rights of teachers and other school employees to not be compelled to use preferred pronouns contrary to biology or religious belief. Specifically, we ask that the 2022 Model Policies clarify that “individuals” refer to teachers, school staff, volunteers, students, and parents, among others. This clarification is necessary in light of the 2021 Model Policies, which unconstitutionally required school staff to “abide by the student’s wishes as to how to address the student” and warned that a “school employee’s intentional and persistent refusal to respect a student’s name and pronoun is considered discriminatory.”[14]