EPPC Scholars Comment Supporting 2022 Model Policies (Part 1/3)

Dear Superintendent Balow:

We are scholars at the Ethics and Public Policy Center (EPPC), and we write in strong support of the Virginia Department of Education’s recent publication of the document titled “2022 Model Policies On The Privacy, Dignity, And Respect For All Students And Parents In Virginia’s Public Schools” (“2022 Model Policies”), and the Virginia Department of Education’s withdrawal of the current policy document titled “Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools” (“2021 Model Policies”). Ryan T. Anderson is the President of EPPC and the author of When Harry Became Sally: Responding to the Transgender Moment. Mary Hasson is the Kate O’Beirne Senior Fellow at EPPC, an attorney, and co-founder of EPPC’s Person and Identity Project, an initiative that equips parents and faith-based institutions to counter gender ideology and promote the truth of the human person. Rachel N. Morrison is an EPPC Fellow, member of EPPC’s HHS Accountability Project, and former attorney at the Equal Employment Opportunity Commission. Roger Severino is Senior Fellow at EPPC, former Director of the Office for Civil Rights at the U.S. Department of Health and Human Services, and former trial attorney at the U.S. Department of Justice Civil Rights Division, and is a member of the Virginia Bar.

We offer the following comments in support of the 2022 Model Policies, along with some suggestions for improvements and sources for evidence-based best practices. Our comment headers correspond to the headers in the 2022 Model Policies.

Statutory Authority and Requirements

The 2022 Model Policies have been developed per § 22.1-23.3 of the Code of Virginia, which provides that local school boards shall adopt policies consistent with Virginia Department of Education’s model policies “concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices” including “information, guidance, procedures, and standards relating to:

• Compliance with applicable nondiscrimination laws;
• Maintenance of a safe and supportive learning environment free from discrimination and harassment for all students;
• Prevention of and response to bullying and harassment;
• Maintenance of student records;
• Identification of students;
• Protection of student privacy and the confidentiality of sensitive information;
• Enforcement of sex-based dress codes; and
• Student participation in sex-specific school activities, events, and use of school facilities.”

Athletics is explicitly excluded from the definition of “activities and events.” Even so, the 2022 Model Policies rightly acknowledge that “schools may separate their sports teams on the basis of sex. Neither the Fourteenth Amendment to the United States Constitution, Title IX, nor the Virginia Human Rights Act require school divisions to allow students of one biological sex to participate on sports teams reserved for members of the other biological sex.”[1] This clarification must be retained, as discussed in more detail later in this comment.

Purpose

The title and purpose of the Model Policies demonstrate a welcome respect for the rights of all and provide a framing for the specific policies that follow by acknowledging the government’s obligation to respect rights, particularly First Amendment rights of all and the fundamental rights of parents to direct the education and upbringing of their children.

The purpose statement of the 2022 Model Policies offers a needed corrective to the 2021 Model Policies by recognizing the rights of “all students … to attend school in an environment free from discrimination, harassment, or bullying,” and then addressing particular concerns related to transgender-identified students within the larger context that recognizes the need for “compassion and respect for all students.”[2] See Virginia Code § 22.1-23.3, which emphasizes the need for a “safe and supportive learning environment… for all students” (emphasis added).

Importantly, the policy’s “Purpose” also expressly acknowledges the fundamental rights of parents, recognized by the U.S. Constitution and Virginia law, to direct the “care, upbringing, and education” of their children. This too is a needed corrective to the 2021 Model Policies which evinced a thoroughgoing disregard for parental rights (discussed below), undermining parental involvement in a student’s education and violating the U.S. Constitution and Virginia law (Va. Code § 1-240.1).

We applaud the Department’s proper recognition of the limits of government power, stating that the Constitution “prohibit[s] governmental entities from requiring individuals to adhere to or adopt a particular ideological belief” or “compelling speech that is contrary to an individual’s personal or religious beliefs.”[3]

 The Department is right to withdraw the 2021 Model Policies, given the ideological bias that tainted the formulation and substance of those policies. Further, the 2021 Policies exceeded the statutory mandate by using the model policies as a vehicle to force ideologically driven social change on students, faculty, and other school community members, not only in the absence of evidence, but contrary to it. For example, the “Terminology” section of the 2021 Model Policies includes controversial terms premised not on science but on ideological beliefs about the human person, identity, and sexual difference.[4] The term “gender identity” is represented as “an innate part of a person’s identity,” but also defined as an “internal sense” of the person’s identity, variously described as “a boy/man, girl/woman, another gender, no gender,” or framed as an indescribable identity existing “outside the male/female binary.” The Terminology section inappropriately labels all persons who do not self-describe as “transgender” as “cisgender,” an ideological term with no basis in science and hostile to various familial and religious beliefs, including Catholicism.

The 2022 Model Policies rightly acknowledge that the “2021 Model Policies promoted a specific viewpoint aimed at achieving cultural and social transformation in schools” and which “disregarded the rights of parents and ignored other legal and constitutional principles.”[5] Moreover, nowhere does the legislative mandate governing the 2022 Model Policies mention gender identity or the plethora of unscientific, ever-expanding, and ideologically loaded terms in the 2021 Model Policies such as “cisgender,” “gender-expansive/gender-diverse/gender-fluid/gender-nonbinary/agender/gender queer,” “gender nonconforming,” “LGBTQ+,” “nonbinary,” “genderqueer,” “agender,” “two-spirit,” or “sex assignment.” In fact, Virginia law requires model policies only with respect to “transgender students” and does not support any of the tendentious laundry list of categories in the 2021 Model Policies (Va. Code § 22.1-23.3). Further, the same law requires policies on “sex-based” dress codes and “sex-specific” school activities based on biological binary understanding of sex ubiquitous in Virginia law and consistent with the most elementary of biological principles taught in Virginia schools as well as basic commonsense.

Guiding Principles

The Guiding Principles of the 2022 Model Policies are sound, proportionate, and respectful of the rights of all.

Guiding Principle A

Section II.A appropriately recognizes the “rights of parents to make decisions with respect to their children” as the first among several key “guiding principles.”[6] By grounding the Model Policies in a clear and explicit recognition of parents’ rights, the Department takes an important step towards building trust with parents and repairing the badly damaged relationship between schools and parents due to the previous administration’s unprecedented politicization of the education bureaucracy across the state.

Parents are the first and primary educators of their children—a principle recognized by diverse faith traditions, natural law, and civil law, including the U.S. Constitution and the Virginia law (Va. Code § 1-240.1). Schools and school officials exercise a limited, delegated, or derivative authority over students, with the permission of parents. This section of the 2022 Model policies is critically important because it mandates that schools adopt policies to “safeguard” parents’ rights and “facilitate the exercise of those rights.” This is a welcome reversal of the 2021 Model policies, which not only failed to respect parents’ rights but betrayed an intention to thwart the exercise of those rights if parents would not go along with the ideological prescriptions of the 2021 Model Policies.

For instance, the 2021 Section on “Student Privacy/Confidentiality” stated that “if a student is not ready or able to safely share with their family about their gender identity, this should be respected. There are no regulations requiring school staff to notify a parent or guardian of a student’s request to affirm their gender identity.”[7] Further, the 2021 Model Policies expressly condoned the duplicitous practice of “addressing the student at school with their name and pronoun consistent with their gender identity while using the legal name and pronoun associated with the sex assigned at birth when communicating with parents or guardians.”[8] Nowhere is this exclusion of parents from the moral, emotional, spiritual, and psychological upbringing of their children authorized by § 22.1-23.3 or any other Virginia law. Outside of the most extreme exceptions, such as when parents have lost legal custody of their children, excluding parents from discussions concerning their children’s well-being in school is always contrary to evidence-based best practices. On the question of student transgender ideation or self-identification in particular, excluding parents from such discussions increases the risk of suicide among children. Not eliminating the 2021 Model Policies on this question will endanger children’s lives.[9]

In addition, we applaud the Department for spelling out in Section II.A.1-3 a series of “commitments” that school policies are expected to make in order to “safeguard” parental rights and “facilitate” parents’ exercise of those rights. These commitments are important to rebuilding trust with parents as well as for modeling a positive tone towards parents’ diverse beliefs and welcoming their involvement as partners in the education of their children, which research conclusively demonstrates is essential to student educational success.

Guiding Principle A.1: Schools Shall Respect Parents’ Values and Beliefs.

This is an essential commitment, and we welcome the Department’s brief, but compelling, acknowledgement that parental values and family beliefs must be respected, not undermined or replaced, by school personnel. Further, the Department rightly notes that respecting parents’ values and beliefs requires more than lip service—it requires an appropriate deference to parental decision-making. Schools must not thwart parental efforts to raise their children in accord with their own “customs, faith, and family culture.”[10] This commitment corrects the antagonistic stance of the 2021 Model Policies towards parental beliefs that did not align with the ideological bias of the 2021 guidance. According to the 2021 Model Policies, school staff were encouraged to pit students against parents that do not fully subscribe to the 2021 Policies mandate of “gender affirmation.” See 2021 Model Policies at 14 (“[S]chool staff should be prepared to support the safety and welfare of transgender students when their families are not affirming. School staff should provide information and referral to resources to support the student in coping with the lack of support at home.”).

Section II.A.1’s succinct summary of the relevant law is accurate, helpful, and essential to ensure that local counsel for Virginia’s school districts are confident in the Constitution’s and the Code of Virginia’s clear recognition of and deference towards parental rights in education.

Guiding Principle A.2: Schools Shall Defer to Parents to Make the Best Decisions with Respect to their Children.

This is a significant change from the 2021 Model Policies, and we are grateful to the Youngkin administration for rectifying a serious wrong in the prior policies.

The 2022 Model Policies state that “Parents are in the best position to work with their children” and to “determine” how best to respect and guide their child’s personal identity development, including the use of names and pronouns, and whether or not to consult their own health care provider regarding identity questions and related courses of action. This statement aligns with the truth—long acknowledged by Supreme Court jurisprudence, common sense, and the faith traditions of America’s major religions—that parents are best positioned to make decisions for the good of their minor children. As philosopher Melissa Moschella writes, “children belong primarily to their parents, not to the larger political community.… [P]arents are the ones with the primary responsibility to care for children and with the corresponding rights and authority to make child-rearing decisions in line with the dictates of their consciences.”[11]

Further, government may not usurp parental authority in these critical areas, nor deprive them of the exercise of their fundamental rights regarding their children, absent an evidentiary finding of abuse, neglect, or abandonment. The 2021 Model Policies endorsed shocking efforts to cut parents out of some of the most significant aspects of a child’s life—the child’s mental health, social engagement, and emerging sense of identity. See 2021 Model Policies “Student Privacy/Confidentiality.”

Guiding Principle A.3: Schools Shall Keep Parents Informed About their Children’s Well-Being.

Building on the previous provisions of this foundational guiding principle—the recognition that parents have the fundamental right to direct their child’s upbringing and education—this section reflects another significant change. It reinforces the obligation of the schools to “keep parents fully informed about all matters that may be reasonably expected to be important to a parent, including, and without limitation, matters related to their child’s health, and social and psychological development.”

Under the prior administration, Virginia’s public schools too often took the position that when it comes to “sensitive issues,” children have the power to make their own decisions, or at least have gatekeeping power, e.g., the right to decide whether to include parents in their deliberations and decision-making about significant issues related to identity and mental health. The 2021 Model Policies, for example, permitted a student to assert a “transgender” identity at school “without requiring any particular substantiating evidence, including diagnosis, treatment, or legal documents,” and without requiring (and even contrary to) parental permission.[12] In fact, those prior policies did not empower children, but rather left them bereft of the much-needed support and guidance of their parents, who love and know them best. Policies which claimed to respect minor children in the exercise of their supposed “autonomy” over life-changing decision instead left children vulnerable to the influence of peers or other adults who—even if well-meaning—bore no long-term responsibility for the children and lacked long-standing knowledge of the child’s past experiences, present needs, and mental health vulnerabilities—knowledge that parents possess. School administrators that encourage young teenage girls to pursue permanently sterilizing interventions without parental involvement will not be there to pick up the pieces when many come to regret it years hence.[13]

Past policies that did not respect parents’ rights to be fully informed about matters related to their child’s well-being were not mere omissions of little consequence—they caused significant harm. Policies which instructed or permitted schools to hide information from parents—based on the supposed consent of the child—sowed distrust between parents and schools, and between the parent and child. By keeping parents in the dark, schools disrupted the parent-child relationship and deprived parents of crucial information necessary to guide and protect their children. As parents have testified, too often they were the last to know when a child had started down the harmful path of psycho-social transition or body-modifying medical interventions.[14] No parent should ever have to learn—after the fact—that some other adult has guided their child down a path contrary to the family’s beliefs and values or has facilitated their child’s entry into the world of “gender-affirming” medical interventions. And it is even more troubling when those other adults are public employees entrusted with the education of other people’s children.