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)