III. The 2022 Model Policies Undermine Equality Provisions in State and Federal Law

A. The 2022 Policies Burden Transgender Students

As the previous Parts show, the 2022 policies burden transgender students to a greater degree than similarly situated cisgender students. School personnel must invalidate the chosen identity, names, and pronouns, of transgender students, while they validate those of cis students. Transgender students face legal hurdles in accessing facilities corresponding with their gender identity, while cisgender students can access such facilities freely. These disproportionate burdens reflect the animus that the administration of Governor Youngkin has shown to transgender students. For example, then-candidate Youngkin referred to transgender girls as “biological men” on the campaign trail,[1] and suggested that referring to transgender students with incorrect pronouns are “in the best interest of the children,” despite overwhelming evidence that such practices increase the risk of depression, sleeplessness, and suicide.[2] After his election, his administration joined twenty-two other states in filing a lawsuit that would permit discrimination against the poorest LGBTQ+ Virginians who seek basic food benefits, essential for their survival, through the Supplemental Nutritional Assistance Benefits (SNAP) program.[3]

Such discrimination against transgender students violates federal and state equality protections. In Grimm v. Gloucester County School Board, a school board prohibited the plaintiff from using a bathroom consistent with his gender identity and failed to change his student records. 972 F.3d 586, 606 (4th Cir. 2020). The Fourth Circuit has held that these burdens constituted impermissible discrimination under the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972. Id. at 606-16.

B. Fourteenth Amendment and Virginia State Constitution Violation

Under the Fourteenth Amendment, the Fourth Circuit explained, the discrimination against Grimm constituted both sex discrimination and anti-transgender discrimination. First, by segregating bathrooms based on biological sex, the school board impermissibly discriminated against Grimm by requiring conformity to sex stereotypes. Id. at 608. As other circuits have held “discrimination against transgender people constitute[s] sex-based discrimination…because such policies punish transgender persons for gender non-conformity.”[4] Under Supreme Court precedent, discrimination based on sex invites heightened judicial scrutiny. Id. at 613.  

Next, the discrimination against Grimm also constituted anti-transgender discrimination. The court held that discrimination against transgender individuals also deserves heightened judicial scrutiny. As it explained, transgender individuals have faced a history of discrimination, including violence, pathologizing, and harassment, in employment, education, and public accommodations. Id. at 612. Being transgender is also an “immutable characteristic,” and transgender people “lack[] political power.” Id. at 612-13. Further, being transgender does not impact one’s ability to participate in society. Id. at 612. These factors made it appropriate for courts to more closely scrutinize discrimination against transgender individuals.

To satisfy the court’s heightened scrutiny, the government had to show that the burdens it imposed on Grimm were “substantially related to [an] important [government] interest.” Id. at 613. The school board argued that its policies protected student privacy. The Fourth Circuit, however, held that there was no evidence that allowing transgender students to use gender appropriate bathrooms harmed student privacy, and invalidated its anti-transgender policies. Id. at 615.

The 2022 Model Policies replicate the discrimination at issue in Grimm, “[b]y relying on so-called ‘biological gender,’ . . . [to] . . .  exclude[]” students from gender appropriate bathrooms. Id. at 615. Like the school board in Grimm, the Policies offer no countervailing interest that will satisfy heightened judicial scrutiny. The 2022 Model Policies, like the school board in Grimm, claim an interest in protecting student privacy. 2022 Model Policies, supra, at 17-18. Yet, as the Grimm court explained, a transgender child uses the bathroom: “by entering a stall and closing the door.”[5] There is no evidence that a transgender student would do anything but “mind[] their own business like any other student” in the restroom. Id. at 614. As the court explained, “in school districts across the country,” including half the school districts in Virginia which permit transgender students to use gender-appropriate bathrooms, “fears” regarding transgender bathroom access “have [not] materialized.” Id.  Virginia school boards “have seen none of the negative consequences predicted by opponents of such policies.” Id. (citation omitted). School administrators, initially opposed to these policies found that shifting the policy produced no ill-effects, and have changed their minds. Id. at 614. Thus, as in Grimm, the Model Policies’ alleged concerns regarding privacy are “based upon sheer conjecture and abstraction.” Id. (citations and quotation marks omitted).

The 2022 Policies serve no interest beyond reflecting anti-transgender animus. As in Grimm, students across Virginia have used restrooms conforming to their gender identity without incident. The Youngkin administration admits it shifted course shifted course after receiving “over 9,000 comments” regarding the 2021 Model Policies. 2022 Model Policies, supra, at 1.  The policy at issue in Grimm was similarly “concocted amidst a flurry of [commentary] from apparently concerned community members,” which include “vitriolic, off-the-cuff comments.” Grimm, 972 F.3d at 615. As in Grimm, the 9,000 comments here include several referring to transgender students as “freaks” and “perverts,” among other epithets.[6] The 2022 Policies reflect reliance on this commentary, rather than guidance by experts regarding children’s development that advise the opposite course. “One would be hard-pressed to look at the record and think that the [Virginia Department of Education] sought to understand . . . transgender status or [the] medical need to socially transition.” Grimm, 972 F.3d at 615 (2020).

Finally, the Constitution of Virginia prohibits “any governmental discrimination upon the basis of . . . sex.”  Va. Const. art I, § 11. In interpreting this provision, the Virginia Supreme Court has held that its “analysis is the same” as that involving the sex equality protections under the federal Equal Protection Clause. Schilling v. Bedford Cnty. Mem’l Hosp., Inc., 225 Va. 539, 543 n. 2 (1983). A violation under the Fourteenth Amendment thus also violates the equality protections in the state constitution.

C. Title IX Violation

The 2022 Model Policies also violate Title IX. Title IX provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). In burdening transgender individuals, the 2022 Policies discriminate against transgender students in violation of Title IX.

Discrimination based on gender identity constitutes discrimination based on sex in violation of Title IX. In Bostock v. Clayton County, the United States Supreme Court held that discrimination based on gender identity constitutes discrimination “because of sex” under Title VII of the federal Civil Rights Act of 1964. 140 S. Ct. 1731, 1753 (2020). As the Court explained, when an employer discriminates based on gender identity, it discriminates based on “traits or actions it would not have questioned in members of a different sex.”[7] Thus, “transgender status [is] inextricably bound up with sex . . . to discriminate [based on gender identity] . . . requires an employer to intentionally treat individual employees differently because of their sex.” Id. at 1742.

While Bostock pertained to discrimination in employment under Title VII, the Supreme Court has historically interpreted the provisions of Title IX in parallel with the provisions of VII.[8] Accordingly, the U.S. Department of Education (DOEd) released a Notice of Interpretation in 2021 extending Bostock’s prohibitions on sexual orientation and gender identity discrimination to Title IX.[9]

By targeting transgender students, the 2022 Policies violate Title IX. While Bostock “d[id] not purport to address bathrooms, locker rooms or anything else of the kind,” its reasoning is applicable in those circumstances. Bostock, 140 S.Ct. at 1753 (2020). Thus, lower courts, including the Fourth Circuit in Grimm, have held that policies burdening transgender students violate Title IX: “sex remains a but-for cause” of anti-transgender discrimination.[10] Grimm, 972 F.3d at 616 (2020).

D. Virginia Human Rights Act (VHRA) Violation.

The VHRA prohibits discrimination based on gender identity “in places of public accommodation, including educational institutions.” Va. Code § 2.2-3900(B)(1). The VHRA prohibits schools “to refuse, withhold from, or deny any individual, or to attempt to refuse, withhold from, or deny any individual . . . any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, or to segregate or discriminate against . . . .” students based on protected characteristics. Id. For purposes of this statute, gender identity refers to “the gender-related identity, appearance, or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Va. Code § 2.2-3901(B). This definition applies “when used in reference to discrimination in the Code and acts of the General Assembly.” Id. The burdens the 2022 Policies place on transgender and gender-expansive students violate the VHRA.

(This is the third 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)