Comment on draft guidelines, "Model Policies for the Treatment of Transgender Students in Virginia's Public Schools"

The undersigned Virginia residents urge the Department of Education (DOE) to make significant revisions to their draft guidelines establishing model policies for transgender students. We care deeply for all children in Virginia, and strongly support the draft guidelines’ guiding principle of providing a safe, supportive environment that promotes the success of all students. At the same time, the DOE model policies are deeply flawed, seeking to impose a single ideology of sex and gender identity that is inconsistent with biology and peer-reviewed evidence, and ignores other valid perspectives on this topic. We urge DOE to make significant revisions to its draft guidelines as described below.

1. DOE should revise the draft guidelines to recognize that many parents and students have different, valid viewpoints on support for students who identify as transgender.

The issue of transgenderism in young adults is one for which perspectives and evidence are evolving, particularly regarding early childhood development. The draft guidelines on p. 20 note “Students and staff each have their own unique religious and personal experiences, views, and opinions,” but they fail to protect those with differing views and opinions.

Students, parents and school staff may hold different perspectives on this topic based on a number of factors such as available evidence, personal experience, and freedom of conscience. Individuals may express opinions that differ from those in the guidelines, but do not constitute bullying or harassment.

For example, Virginia schools are increasingly likely to include students, teachers or parents who first identified as transgender at a younger age and who later experienced regret or detransitioned. In speaking to others at school, these individuals may wish to counsel caution and discuss potential negative health outcomes that can result from the gender transition process or interventions.

Further, some Virginia students and parents hold the view that gender is not as malleable as assumed by the guidelines, and that attempts to override the biology of sex with the psychology of gender may do more harm than good for many young people. The guidelines fail to recognize and support these differing perspectives, instead enforcing a single viewpoint that conflicts with a significant body of medical and scientific literature.[i] [ii]

Recommendation: We urge DoE to revise the guidelines to state affirmatively that: a)  many students, parents and school staff in Virginia hold viewpoints on how best to care for students who identify as transgender that differ from those in the guidelines, but are equally valid and grounded both in science and compassion for all students; and b) students and parents will not be penalized for expressing viewpoints that do not constitute bullying or harassment, but are different from those in the guidelines.

2. The guidelines present an incomplete picture of available research, ignoring substantial evidence of potential negative effects of gender transitioning in young adults.

The draft guidelines do not provide a comprehensive, balanced review of evidence, much of which would argue for proceeding with caution on gender transition in prepubescent children.  State law requires DOE to develop “evidence-based best practices” on this topic. The guidelines must be revised to include, at a minimum, the available research on:

• the increased risk of sexual offenses when mixed-sex changing rooms are employed[iii] [iv]
• the 11 or more published studies showing that the majority of children who identify as transgender before puberty eventually accept their biological sex after puberty.[v]
• the risk of harms of “gender affirming therapy” in children who identify as transgender, including from pharmacologic and surgical interventions.[vi] [vii] [viii]

According to one recent report, long-term studies show that after transitioning to a different gender, individuals’ “quality of life deteriorates significantly and suicide rates rise,” and “the best quality studies show that transitioning leads to negative outcomes.”[ix]

Recommendation: Given the substantial amount of evidence that DOE has failed to identify, the agency should, prior to finalizing the guidelines, hire an independent research consultant to conduct a more rigorous, systematic review of evidence. Further, the guidelines should make clear when they are referencing literature that is non-peer reviewed vs. peer reviewed, and include the strengths and limitations of referenced literature (e.g., degree of applicability to K-12 student age groups).   In addition, DOE should ensure the guidelines include an accurate presentation of available evidence as described above.

3. The guidelines fail to protect students in school facilities who desire not to share facilities with individuals of the opposite biological sex.

The guidelines acknowledge the need to protect all students but fail to address a range of significant issues that likely will emerge. Evidence indicates that use of mixed-sex changing rooms or locker rooms creates an increased risk of sexual harassment.[x] Many students who do not identify as transgender may desire accommodations to protect themselves from these risks and maintain their personal sense of security at school. The guidelines must include clear, specific practices to protect students in ways that minimize the risk of stigmatization.  

Recommendation: The guidelines should provide additional detail to ensure schools have clear policies on how non-transgender students who desire separate accommodations will know during the school year when such accommodations need to be requested. This should including best practices addressing the questions of: a) how schools can work to maximize the “full inclusion” of these students when policy will by definition subject them to some degree of exclusions, and b) how schools should balance competing student needs (e.g., protecting the privacy of a student while also respecting another student’s need for separate accommodations).

4. The guidelines fail to protect students’ freedom to express differing viewpoints on how best to care for and support peers who experience gender dysphoria or identify as transgender.

As noted above, many Virginia students, parents and school staff have views that differ from those described in the guidelines. A recent survey of students in Virginia showed students may disagree with the guidelines’ ideology based on available scientific research, their personal experiences, and/or as a matter of personal conscience or religious beliefs.[xi]

Recommendation: The guidelines should make a clear distinction between speech or behavior that constitutes bullying or harassment, which are never acceptable, and speech or behavior that reflects views that are different from those in the guidelines but do not constitute bullying or harassment. Further, in discussing promotion of activities on p. 20, the guidelines should note that schools may support student clubs or other organizations with differing viewpoints, such as those focused on experiences of transgender youth who have detransitioned.

5. The guidelines fall short in supporting all parents as partners who have primary responsibility for  their children’s physical, emotional and spiritual well-being.

As drafted, the guidelines establish a separate class of parents deemed “unsupportive,” and would accord these parents a lesser status with reduced rights. Virginia schools have a responsibility to partner with all parents and guardians, not a subset who happen to share ideological alignment with public officials. Parents should not be penalized for seeking to care for their children in ways that are consistent with both their beliefs and a large body of rigorous evidence, but differ from the ideology imposed by the guidelines.

We are deeply concerned that the policy would direct school officials to withhold important information about a child from parents deemed “unsupportive.” We see no scientific or legal basis for  granting schools the power to decide whether to share student information with a minor’s parents based on such a determination. For example, recognizing the evidence cited above, a parent may counsel their child to wait until puberty to decide if they are transgender, yet such a parent may be classified as “unsupportive” under the guidelines. We are also concerned that the guidelines set an exceptionally vague, subjective standard of “unsupportiveness,” yet describe no procedures or criteria by which a determination of “unsupportiveness” would be made, or how parents would be able to appeal such a determination (though we believe the language should be struck entirely).

In addition, this proposed power likely conflicts with the Family Education Rights and Privacy Act (FERPA), which gives parents the right to view student records,[xii] and may conflict with standards for legally changing a minor’s name, which typically require parental consent.[xiii]

Recommendation: Delete from the guidelines language purporting to give school officials power to establish a class of parents deemed “unsupportive” and reduce the civil rights of those parents by withholding from them information that is important to the education and well-being of their children, including information related to their name and gender identity or status as gender dysphoric.

6. The guidelines do not provide an accurate description or comprehensive reference to key laws and public policies.

We appreciate DOE’s inclusion of relevant laws and public policies informing the guidelines. However, descriptions of them are inaccurate or incomplete at several points. In addition, the guidelines should include relevant references to the Virginia Constitution and/or Statute of Religious Freedom.

1) Clarify the description of the First Amendment. The guidelines state that the First Amendment of the U.S. Constitution guarantees freedom of “speech” and “expression,” but overlooks other important freedoms that are relevant to this policy. We recommend revising this language to state: “The First Amendment protects the free exercise of religion, freedom of speech, of the press and of assembly.”[xiv]

We further recommend revising the second sentence -- “Schools may not prevent students from expressing their identity” – to more closely align with the requirements of the First Amendment in the public school context. We support the (presumed) intent of the statement, but it includes a term so broad it is unenforceable (“identity”) and overlooks other relevant speech that schools may not prevent. We recommend DoE revise this sentence to say “schools may not prevent students from freedom of expression, including speech or other forms of expression related to the student’s gender identity, religion, or conscience.”

2) As noted by the guidelines, the document holds important implications for freedom of religion. We recommend including reference to Virginia’s Constitution and/or Statute for Religious Freedom. Specifically, DoE should include in this section a paragraph stating: “Virginia Statute for Religious Freedom: The Virginia Statute for Religious Freedom states that all Virginians ‘shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.’”[xv] Similarly, we ask DoE to include language from Article I, Sec. 16 of the Virginia Constitution protecting the free exercise of religion.

3) Expand the description of FERPA. The description of FERPA in the draft guidelines omits a key reference to parental rights. We recommend DOE revise this language to align with U.S. Department of Education’s description by adding the italicized sentence below:

Family Educational Rights and Privacy Act (FERPA): This is a federal law that protects the privacy of student educational records. It gives parents and eligible students the right to review and request corrections to the student’s education records maintained by the school. It prohibits the improper disclosure of…”.[xvi]

4) Applicably of HIPAA to elementary and secondary schools: Our understanding is that for K-12 schools, particularly public schools, Health Insurance Portability and Accountability Act privacy rules generally do not apply because records are considered “educational” and not “treatment” records. We recommend that DoE have this section reviewed by legal counsel and delete or correct it.[xvii]

7. Conclusion

We care for all students in Virginia, including students who identify as transgender. However, the guidelines over-reach in seeking to impose a single ideological perspective, failing to protect all students and to recognize and accommodate different, valid viewpoints held by many students, school staff and parents. As a result, DOE must modify the draft guidelines as recommended above.

Signed:

Kristen Allen

Wendell Brown

Burton Burkholder

Randy and Jennifer Burkholder

Ronnie and Sandy Downing

Sherri Fosdick

Mary Hazzard

Anne Quinn

Vell and Carmen Rives

Todd and Beth Sedmak