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  11:09 pm
Commenter: Delegate Marcus Simon

Them proposed policy does not comply with Virginia Law

As the Chief Patron for HB145 I can confidently say that the newly proposed model policies do not meet the criteria laid out in my bill and now codified as § 22.1-23.3. Treatment of transgender students; policies.

First, the code call for policies “that address common issues regarding transgender students in accordance with evidence-based best practices”

The proposed policies cite no evidence and are contrary to best practices for the treatment of transgender students.

The code goes on to require the polices meet 8 enumerated criteria. The  model polices fail to meet these criteria in a number of ways.

  1. They are not in compliance with applicable non-discrimination laws that prohibit discrimination based on sex. The U.S. Department of Education's Office for Civil Rights has issued a Notice of Interpretation explaining that it will enforce Title IX's prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.

  2. The proposed policies will not maintain a safe and supportive learning environment free from discrimination and harassment for all students. In fact- the policies allow students and teachers to misgender and deadname trans students if the harassing student or teacher claims their harassment is based on their religious beliefs.
  3. These defects also mean the proposed policies will not prevent or provide appropriate responses to bullying and harassment;
  4. The requirement for legal documentation to update student records is not consistent with the original intent of the policy as it creates unnecessary  and burdensome barriers to updating school records
  5. Identification of students. As noted above - exceptions to the way students are to be identified render the rule meaningless. The proposed policies on identification of students are not rooted in evidence based best practices.
  6. The proposed policies won’t protect student privacy or confidentiality. I have been approached by parents whose main concern is that their children’s peers are not aware their child presents as a gender that is different than what they were assigned at birth. Allowing teachers to misgender and deadname such students under a religious exemption would effectively out such children against their will and the desires of their parents.
  7. & 8. The Model policies go beyond the scope of the statute here, by emphasizing school sports when athletics are explicitly excluded by the code.

These comments do not come close to expressing all of my concerns with these cruel, inhumane, I’ll advised, slap dash revisions to the thoughtfully produced, well researched policies that were the product of months of public workshops and input.

I chose instead to focus on the very serious legal problems with the policy and hope that you will avoid costly and unnecessary litigation you will undoubtedly lose by withdrawing these revisions to the model polices. 

Marcus B Simon


CommentID: 202738