Virginia Regulatory Town Hall
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  11:37 pm
Commenter: Professor Craig Konnoth, Spencer Haydary, Max Larson

Comprehensive Comment Part 1 - Opposing

October 26, 2022


Virginia Department of Education

Superintendent Jillian Balow

James Monroe Bldg., 25th Floor

101 N. 14th St.

Richmond, VA 23219


Re: Comprehensive Comment Opposed to the Proposed 2022 Model Policies on the Privacy, Dignity, and Respect for All Students in Virginia’s Public Schools submitted by Professor Craig Konnoth, Spencer Haydary, & Max Larson


We submit these comprehensive comments in opposition to the Virginia Department of Education’s (VDOE) 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (“2022 Model Policies”). These Model Policies conflict with state and federal law, will harm the students attending Virginia schools, and will undermine parental interests in protecting and guiding their children. We ask that you reject the 2022 Model Policies and keep the 2021 Model Policies in effect.


Alternatively, 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.




Craig Konnoth

Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law

University of Virginia School of Law

Greenwall Foundation Faculty Scholar

John Casteen III Faculty Fellow

Affiliated Faculty, Center for Health Humanities and Ethics, University of Virginia  


Spencer Haydary

University of Virginia, J.D. expected 2023


Max Larson

University of Virginia, J.D. expected 2023


(Titles and affiliations provided for identification purposes only and do not necessarily reflect the views of our affiliated institutions).





In 2020, the Virginia state legislature enacted Va. Code § 22.1-23.3 requiring the Virginia Department of Education (VDOE) to develop model policies with respect to “common issues regarding transgender students in accordance with evidence-based best practices.” Id. Pursuant to that statute, in 2021, the VDOE under Governor Northam issued guidance that became finalized on March 6, 2021. 2021 Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, 6-7 [hereinafter 2021 Model Policies].


The 2021 Model Policies established strong protections for trans students in Virginia’s K-12 public schools. “The key guiding principle of the [2021] policies is that all children have a right to learn, free from discrimination and harassment.” Id. at 8. These policies cited scientific consensus that “[g]ender identity is considered an innate characteristic.” Id. They protected the information of transgender students as “particularly sensitive,” mandated the use of trans students’ preferred name and pronouns, protected gender identity and expression in students’ dress, protected access to activities, events, and facilities based on gender identity, and required LGBTQ+-specific student wellbeing training for staff, among other protections. Id. at 12-13, 17-20. In developing these policies, VDOE cited numerous scientific studies, surveys from LGBTQ+ advocacy organizations, and guidance and findings from governmental agencies such as the U.S. Department of Education’s Office for Civil Rights (OCR). Id. at 9-11.


On September 26, 2022, VDOE, under the administration of Governor Youngkin, promulgated new policies to replace the 2021 Model Policies. 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (proposed Sept. 26, 2022) (effective date Oct. 26, 2022) [hereinafter 2022 Model Policies]. The 2022 Model Policies do not cite to a single source examining trans or LGBTQ+ children. 2022 Model Policies, supra, at 10-12. These Policies reversed nearly every protection afforded to trans students from the 2021 Model Policies.


Part I explain how the 2022 Model Policies strip the protections of the 2021 Policies. Part II highlights how these policies specifically conflict with the Virginia statute governing the treatment of transgender students. Part III demonstrates how these policies conflict with Virginia and federal equality guarantees (including the Virginia Human Rights Act, Title IX of the federal Education Amendments of 1972 (“Title IX”), and the Fourteenth Amendment of the federal Constitution). Part IV explains how these policies undermine constitutional protections of students, parents, and teachers.


I. Comparison between the 2021 and 2022 VDOE Model Policies


In this Part, we identify the key differences between the 2021 and 2022 Model Policies, which give rise to the legal concerns we identify.




2021 Policy

2022 Policy

Definition of sex and gender identity

Primarily defined gender identity as “[a] person’s internal sense of their own identity.” 2021 Model Policies, supra, at 6. Defined sex assignment as “[a] label, generally ‘male’ or ‘female,’ that is typically assigned at birth on the basis of a cluster of physical and anatomical features.” Id. at 7. Recognized the existence of intersex and non-binary students. Id. at 6-7.

Defines sex as “biological sex” and defines transgender student as “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.” 2022 Model Policies, supra, at 5. Ignores the existence of intersex and nonbinary students.

Right of students to self-identify

Schools had to allow students to self-identify. 2021 Model Policies, supra, at 13. Permitted use of preferred names and pronouns corresponding with the student’s gender identity upon request of the student. Id.

Students no longer possess a right to self-identify. School personnel required to refer to students by names and pronouns reflected on the student’s record. 2022 Model Policies, supra, at 16. Changes can be made to the record, but only if the hurdles discussed below are satisfied.

Right of parents to assist student self-identification

No process required if students and parents agree on identification. 2021 Model Policies, supra, at 13. If student and parents disagree, the Policies recommended a nuanced process that required school personnel to engage with both the student and their parents to “assist[] the family in developing solutions in their child’s best interests,” including providing expert information and advice to families. Id. at 14.

Parents can oppose their trans children from self-identifying, even against expert advice. Parents who support their transgender children’s self-identification can place their request in writing, but cannot update the school record without providing a legal document reflecting such changes. 2022 Model Policies, supra, at 16. Even then, teachers can ignore parental choices when it “would violate their constitutionally protected rights.” Id.

Rights of schools and teachers

Schools and teachers required to respect parents’ and students’ wishes when they agreed on gender identification. 2021 Model Policies, supra, at 13. Where there is disagreement, schools and teachers required to defer to experts in the best interests of the child. Id. at 13-14.

Teachers can, at their whim, ignore the choices of both parents and children. 2022 Model Policies, supra, at 16.

Student Records

2021 Model Policies required schools to use names and pronouns consistent with trans students’ gender identity on school records and documents by request of either the parent or the student, or the submission of a legal document. 2021 Model Policies, supra, at 16. Permitted re-issuing of student records to former students. Id.

Schools can update name and gender markers only upon submission of a legal document; removes ability of the student or parent to request the student’s preferred name and pronouns on other documents. 2022 Model Policies, supra, at 15-16. Further, does not permit schools to reissue records to former students who submit documentation reflecting their preferred name and gender marker. Id.

Student Privacy

School personnel were required to “adhere to legal standards of confidentiality relating to information about a student’s gender identity, legal name, or sex assigned at birth,” to “treat information relating to a student’s gender identity as being particularly sensitive.” Further, these policies instructed schools that they should provide facilities, such as restrooms, “that afford more privacy.” Id. at 18.

Removes requirements seeking to avoid inadvertent disclosure of trans student birth names and gender markers and other confidentiality and privacy provisions specifically protecting transgender students, beyond those required by state or federal statute. 2022 Model Policies, supra, at 17.

Bullying, harassment, and discrimination (BHD)

Prohibited BHD based on actual or perceived sexual orientation and gender identity. 2021 Model Policies, supra, at 11. Required sexual orientation and gender identity complaints to “be handled in the same manner as other [BHD] complaints.” Id. Required “[a]ll school mental health professionals [to] be trained annually on topics relating to LGBTQ+ students...” Id. at 20.

Eliminates gender identity as an explicitly protected class and does not protect straight or cis students from being bullied for being perceived as gay or trans. 2022 Model Policies, supra, at 15. Removes LGBTQ+-specific training requirements for school mental health professionals. Id. at 15.

Dress Codes

Permitted students to dress in ways “consistent with their gender identity or expression.” 2021 Model Policies, supra, at 17. Required schools to enforce dress codes evenly “regardless of actual or perceived gender identity or gender expression.” Id. Required dress codes “for school-related programs, activities, and events [to] be gender-neutral.” Id.  

Allows schools to groom students into certain genders: schools may require them to dress according to specific gender expectations. Prohibits requiring students to dress in gender-neutral manners and requires dress codes to “provide the same set of rules and standards regardless of gender.” Id.

Access to Activities, Facilities, and Events

Required schools to “eliminate the practice of segregating students by gender to the extent possible.” 2021 Model Policies at 18. In sex-segregated programs, events, and activities, students could participate in a manner consistent with the student’s gender identity. Id. Recognized that VDOE was not permitted to regulate athletics and noted the legislative intent to leave such regulations to the authority of organizations such as the Virginia High School League (VHSL) and the Virginia Scholastic Rowing Association (VASRA). Id. Required access to facilities based on the student’s gender identity. Id. at 19.

Limits participation in sex-segregated activities, events, and facilities based on “biological sex” as reflected on the student’s record. 2022 Model Policies, supra, at 17-18. Requires providing “reasonable modifications” only “to the extent required by federal law.” Id. Attempts to regulate athletics, in violation of the text of authorizing statute and its legislative history. Id. at 18.

Removal of LGBTQ+-inclusive resources

Provided over sixty resources including resources for schools, professional development, students, and parents. 2021 Model Policies, supra, at 22-24. The document also included sample model policies and guidelines as well as links to LGBTQ+ advocacy organizations such as Equality Virginia, the Gay, Lesbian & Straight Education Network (GLSEN), the National Center for Transgender Equality, and the Shenandoah LGBTQ Center, among others.

Purged the list of these resources and replaced them with nine resources largely focused on the role of parents in bullying prevention. 2022 Model Policies, supra, at 10-12.


(This is the first 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)


CommentID: 202895