Virginia Regulatory Town Hall View Comments

Department of Education

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 10:51 pm

Commenter: Ed Baird

Please do not adopt the 2022 Model Policies

I oppose the 2022 Model Policies. I am the proud father of a transgender son who graduated from high school in Virginia this year and has just started college. He is happy and well adjusted, which I attribute in large part to the supportive environment staff were able to provide in middle school and high school. Even before my wife or I were able to talk to him constructively about his feelings, he found support in knowledgeable school counselors and teachers who helped him understand what he was learning about himself. As he was exploring his identity, he was free to use a name other than his legal name and pronouns other than those corresponding to his gender assigned at birth, which helped reduce the anxieties that he was facing. And the school was free to use that name on school records and email addresses, which also reduced his anxiety. Finally, all teachers used his preferred name which was crucial during this time.

The 2021 Model Guidelines document about how transgender students are at higher risk of adverse mental health outcomes, harassment, lower academic performance, suicidal ideation, and homelessness, and I shudder to think of what my son might have experienced if he did not have the supportive environment he had in Virginia schools. Yet, the 2022 Guidelines would outlaw many of the supportive services that my son received. Speaking from experience, it can take time for even a loving parent to accept the reality of their transgender child’s identity, and it could be unhealthy to force a child to seek parental written permission to use a preferred name and pronouns at school. And because a child’s safety is at issue, given the rate of suicides among transgender children, I do not believe a public school teacher has a First Amendment right to decline to use the child’s preferred name or pronouns.

Further, as a lawyer, I do not think that VDOE is using the proper procedures to adopt the 2022 Model Policies. Because all Virginia school boards must set policies that are consistent with them, they set legally binding requirements and are not a guidance document but rather a regulation. Therefore, the expedited process that VDOE is using for guidance documents under Virginia Code § 2.2-4002.1 is not appropriate. Instead, VDOE must follow the more robust notice and comment requirements of the Virginia Administrative Process Act for regulations.

In addition, the 2022 Model Policies do not follow the requirements of Virginia Code § 22.1-23.3. That statute empowers VDOE to adopt “model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices.” However, some of the provisions in the 2022 Model Policies (such as the nondiscrimination and anti-bullying provisions) do not specifically address transgender students at all, and VDOE provides no evidence to show that any of the provisions in the 2022 Model Policies are best practices for the treatment for transgender students. Moreover, VDOE does not refute or even address the substantial evidence cited by VDOE in support of the 2021 Model Policies.

For these reasons, as a parent and a lawyer, I ask that VDOE change its course and not adopt the 2022 Model Policies.

CommentID: 202636