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  11:45 pm
Commenter: Andrew Allard

Protect the rights of gender nonconforming student

My name is Andrew Allard. I have been a resident of Virginia for more than three years and am currently a student at UVA. As an LGBT citizen of the Commonwealth, I write to express my opposition to the 2022 Model Policies.


Firstly, the proposed rules contradict the holding of the US District Court, E.D. Virginia in Grimm v. Gloucester County School Board. That case acknowledged that “discrimination on the basis of transgender status constitutes a viable claim of sex discrimination under Title IX,” and is also “subject to intermediate scrutiny under the Constitutions Equal Protection Clause.” The Court thus concluded that the Board’s policy requiring students to use school restrooms corresponding to sex assigned at birth as well as its refusal to update Mr. Grimm’s official school transcript to reflect the “male” designation on his updated birth certificate both violated the Fourteenth Amendment and Title IX. The ruling in Grimm would likely prohibit Virginia schools from adopting certain provisions of the proposed Model Policy, such as III.C. Maintenance of student records, III.D. Identification of students, III.F. Enforcement of sex-based dressed codes, III.H. Athletics, and particularly III.G. Student participation in sex-specific school activities and events and use of school facilities.


Secondly, the proposed rules violate Virginia’s own laws. The Virginia Human Rights Act clearly provides that “It is the policy of the Commonwealth to . . . [s]afeguard all individuals within the Commonwealth from unlawful discrimination because of . . . gender identity . . . in places of public accommodation, including education institutions.” Va. Code Ann. § 2.2-3900. Because elements of the proposed rules violate the ruling in Grimm, it is clear that the policy constitutes the kind of “unlawful discrimination because of . . . gender identity” that the act expressly forbids.


Lastly, the proposed rules inaccurately construe the First Amendment as creating a right for teachers to harass their students. The Virginia Department of Education suggests that “[p]ractices such as compelling others to use preferred pronouns” violate the First Amendment because “[t] he First Amendment forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs.” It is true that the First Amendment allows for freedom of thought, but requiring teachers to respectfully address their students can hardly be construed as compelling belief. It may also be true that many Virginians oppose the nation’s immigration policies. But surely Virginia teachers could not, based upon this sincerely held belief, refuse to address an immigrant student by their given name. Such a teacher may object that the student ought to adopt an English name or that their given name is cumbersome to pronounce. It would nonetheless be disrespectful and discriminatory to persist in calling them by a name not theirs. The same is true for gender nonconforming students. No belief, no matter how sincerely held, entitles a teacher to disrespect a student by improperly addressing them.


There are many more reasons for which I oppose these policies that I will not endeavor to write here, as many others likely have already articulated them better than I can. But I will conclude by saying that the proposed Model Policies, beyond violating Federal and State law, are cruel. They target a group—transgender teens—that studies have shown to be at a high risk of suicide. They refuse to make even the most basic accommodations for that group. In doing so, they needlessly endanger Virginia’s gender nonconforming students, instilling fear and shame in them, while teaching their classmates that their gender nonconforming peers are deserving of discrimination. Because I know and love many gender nonconforming individuals, I find the proposed policies in their current form to be an unconscionable assault on my community.


For these reasons, I ask you to repeal the 2022 Model Policies and reinstate the 2021 Model Policies.

CommentID: 202936