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  11:40 pm
Commenter: Michael Pruitt

Policy is likely illegal, dangerous

The administration’s proposed Model Policy conflicts with state and federal law, the guidance of all leading medical associations, and its own stated philosophy.

Let’s start with the federal issue. Courts throughout the country, including Virginia’s own 4th Circuit in Grimm v. Gloucester, have found that policies that create unsafe policies for trans students, apply differential treatment to trans students, or otherwise work to deny an equal access to education for trans students violate Title IX. Actions such as consistently addressing a trans student by the incorrect name with the full understanding of possible distress doing so might cause (as the proposed policy mandates) or compelling a trans student to use the bathroom corresponding to their sex assigned at birth can easily be construed as denying an equal access to education on the basis of sex in violation of Title IX. This exact question regarding bathrooms was at issue in Grimm, with the 4th Circuit holding against the Virginia school district's discriminatory policy.

The policy is likely illegal under state law as well. The Model Policy is promulgated under the Virginia School Code § 22.1-23.3. The legislative history of this section is neither elusive nor arcane: the section was adopted two short years ago as part of an effort by a new Democratic majority to expand support to trans students. The administration's proposed policy clearly contravenes legislative purpose. Furthermore, it fails to meet the requirements set forth by the code of policies that conform with "evidence-based best practices," a clear deference to evolving expert knowledge in the still-young academic disciplines of education and trans health. The administration offers a perplexing and frankly embarrassing take on the evidence requirement, listing instead a series of cases and statutes, including many that directly rebuke the proposed policy. The administration's process clearly involved a team of time-crunched lawyers and little else--no educators, no mental health experts, no trans students or parents thereof.

The other reason that the administration likely cites to sources like the Constitution and obscure local circuit preliminary injunctions is that actual evidence based practices differ dramatically from the proposed Model Policy. Gender affirming practices, such as addressing trans kids by their chosen name and pronoun, allowing them to use the bathroom consistent with their identity, and allowing them participation in sports with their peers reduces rates of suicide, depression, and anxiety (see, e.g., Murad et. al, 2010; Smith et al. (2010); Owen-Smith et al. (2018)). It should be no surprise, then, that every major medical association in the United States holds that these practices are medically necessary for many trans individuals (Baker, 2017)-- this ranges from the niche World Professional Association for Transgender Health (see Coleman et al., 2012) to the ubiquitous American Medical Association (see American Medical Association, 2019). This is the type of evidence based best practices the General Assembly clearly invoked, and it is no where to be found in the current proposed policy.

Finally, the policy's own stated raison d'etre, giving parents control over their children's lives rather than schools and government, is disserved by the proposed Model Policy. The policy, in its guiding principles, states that "Schools shall defer to parents to make the best decisions with respect to their children." However, the policy also requires that when parents wish for their trans child to be addressed by the child's chosen name, school employees must dishonor this parental wish until they receive legal documentation from the parents. This is true regardless of whether or not the child's transition is supported by their doctors as well. Even if the parents are able to jump through the onerous legal hoops for their child to simply be called the correct name, the child will still be prevented from using the bathroom consistent with their gender, participating in sports the parent and child might wish them to compete in, and wearing the very clothes that the parent selected for the child.

Combined, these issues make it clear: if adopted, the proposed Model Policy will end up mired in court, costing the Commonwealth millions only for most of its provisions to be stripped away. It does not serve the interests of the parents it invokes in its principles, it does not serve the interests of students, and it does not serve the interest of tax payers. It's slapdash design and poor legal framing doesn't even serve the interests of those social elements who do want marginalize trans kids, as the numerous flaws will only result in strengthening the legal precedents protecting trans students. The one interest it does serve is the Governor's national political ambition. If passed, this policy will slowly grind toward ineffectualness in the courts while harming the wellbeing of countless children and families on the way in the sole interest of creating fodder for a speech Youngkin will hope in vain for Fox to soundbite. 

CommentID: 202912