Lambda Legal Defense and Education Fund, Inc. (“Lambda Legal”), the oldest and largest national legal organization dedicated to achieving full recognition of the civil rights of lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people and everyone living with HIV through impact litigation, education, and policy advocacy, hereby submits this comment in strong opposition to the guidance document changes proposed by the Virginia Department of Education (“VDOE”) on September 26, 2022 (the “2022 Model Policies” or “the Guidance Document”).   

 I. The 2022 Model Policies are contrary to Virginia state law.  

The 2022 Model Policies violate the purpose and text of the very statute they purport to carry out. Though citing Va. Code Ann. § 22.1-23.3 as authority for the proposed changes, the 2022 Model Policies undermine the statute’s animating principles of respecting and protecting nonbinary and transgender students, fail to comply with its requirement that the VDOE to develop model policies “concerning the treatment of transgender students” which are “in accordance with evidence-based best practices,” and overstep VDOE’s authority by regulating transgender students’ participation in athletics—a subject specifically carved out of the statute’s regulatory mandate. The Guidance Document runs afoul of the nondiscrimination mandate of both the animating statute itself, the Virginia Human Rights Law, and the constitutional authority of local school boards to enact their own nondiscrimination mandates. VDOE should therefore rescind the 2022 Model Policies. 

 A. The 2022 Model Policies undermine the statutory purpose of their enabling statute.  

Senate Bill 161 was introduced in response to stories “from transgender youths and their families, educators and community advocates” about the ways in which “transgender students often must contend with mistreatment and invalidation around every corner. The very place where they are supposed to learn and grow is telling them that their identity is wrong by enforcing discriminatory school policies and procedures. Transgender students often end up feeling isolated from or rejected by their peers, which causes their grades to slip and their mental health to suffer.” The bill was introduced in response to the lack of “consistent policies to protect transgender students’ rights” in order “to ensure that schools are safe and affirming for all students.” Jennifer B. Boysko, Protecting transgender students is essential to creating safe Virginia schools, Washington Post, Feb. 4, 2022, at https://www.washingtonpost.com/opinions/2022/02/04/protecting-transgender-students-is-essential-creating-safe-virginia-schools/.   

The 2022 Model Policies are at odds with those underlying purposes. Provisions throughout the 2022 Model Policies require precisely the kind of mistreatment and invalidation the underlying statute was intended to combat, including but not limited to the provisions barring educators from using the name or pronouns consistent with a student’s gender identity, barring students from participating in school activities consistent with their gender identities, and barring educators from stopping other students from disrespecting a nonbinary or transgender student’s name and pronouns. The inclusion of these provisions in the 2022 Model Policies will subject nonbinary and transgender students to harassment and discrimination and deprive them of equal educational opportunity, directly flouting the underlying purposes of Va. Code Ann. § 22.1-23.3. 

B. The 2022 Model Policies fail to properly consider evidence-based best practices specific to transgender and nonbinary students. 

More specifically, the Guidance Document violates the explicit terms of the statute by failing to examine or identify best practices “regarding” or “concerning” transgender students attending public schools in Virginia or around the country, much less practices specific to transgender students informed or supported by evidence-based data. Had VDOE done so, it would have found that transgender and nonbinary students face pervasive harassment and discrimination in schools. References to studies about the harms of generalized bullying are dramatically insufficient to support development of model policies that appropriately reflect the needs and experiences of nonbinary and transgender students. 

A recent GLSEN School Climate survey reported that over half of LGBTQ students in Virginia reported discrimination and harassment in the last year and the vast majority have heard anti-LGBTQ remarks. https://www.glsen.org/sites/default/files/2021-01/Virginia-Snapshot-2019.pdf. The discrimination nonbinary and transgender students experience comes in many forms, including being denied the right to participate in school activities or use facilities that are gender segregated in accordance with their gender identity, misgendering and misuse of an improper name, to name just a few examples.  Id.  In addition, nonbinary and transgender students’ privacy is often compromised without their consent through various computer platforms or student identification. Nonbinary and transgender students also experience disproportionate school discipline, especially for their appearance. See, e.g., K-12 Education: Department of Education Should Provide Information on Equity and Safety in School Dress Codes, United States Government Accountability Office, at 17-18, October 2022, available at https://www.gao.gov/assets/gao-23-105348.pdf.   

When nonbinary and transgender students do not feel safe in their schools, there are negative short-term and long-term consequences. In the short-term, they experience increased absences, lowered GPAs, and are less likely to go to college. This is especially true for nonbinary and transgender youth of color who are the most likely to avoid school and who experience the highest rates of depression. Suicidality and mental health issues continue to plague nonbinary and transgender youth as a result of the pervasive harassment and discrimination they experience.  In the long-term, chronic absences often lead to nonbinary and transgender students leaving school early, reducing their likelihood of attending college, leading to long-term negative health care outcomes, housing insecurity and a lack of financial well-being. See DeChants, J.P., Green, A.E., Price, M.N, & Davis, C.K. (2021), Homelessness and Housing Instability Among LGBTQ Youth, West Hollywood, CA: The Trevor Project. By contrast, nonbinary and transgender students who are accepted for who they are more likely to thrive and less likely to attempt suicide. https://www.liebertpub.com/doi/10.1089/trgh.2021.0079. When students are accepted as who they are as nonbinary or transgender, they report higher rates of academic achievement and attendance and are less likely to experience bullying and harassment. https://www.glsen.org/sites/default/files/2022-10/NSCS-2021-Full-Report.pdf.  

Because the 2022 Model Policies were not developed “in accordance with evidence-based best practices,” they are contrary to the plain language of Va. Code Ann. § 22.1-23.3. 

C. The 2022 Model Policies exceed VDOE’s authority by regulating transgender and nonbinary students’ ability to participate in school athletics.  

Additionally, while the law requires that VDOE address common issues regarding transgender students, it expressly excludes athletics from its purview. Va. Code Ann. § 22.1-23.3(A)(8) (topics for required guidance “do not include athletics.”)  Not only does VDOE exceed its authority by weighing into the issue in first instance, it does so in a way that deprives nonbinary and transgender students of equal “participation in sex-specific school activities and events and use of school facilities” in violation of that same provision.  

D. The 2022 Model Policies violate statutory and constitutional nondiscrimination mandates. 

Simultaneously violating the plain terms of its enabling statute and applicable nondiscrimination laws, the Guidance Document precludes school districts from fulfilling their obligation to ensure equal educational opportunity to transgender and nonbinary students. First, the 2022 Model Policies are contrary to both Va. Code Ann. § 22.1-23.3 (A)(2), which requires that model policies ensure the “[m]aintenance of a safe and supportive learning environment free from discrimination and harassment” for transgender students, and the Virginia Human Rights Act which, in relevant part, expressly safeguards transgender Virginians from unlawful discrimination in educational institutions based on sex and gender identity. Va. Code Ann. § 2.2-3900 (defining gender identity as “gender-related identity, appearance, or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”). This includes a student’s right not to be denied “the accommodations, advantages, facilities, services, or privileges made available” by a place of public accommodation, including an educational institution, or to be segregated or discriminated against in an educational institution because of the student’s gender identity. Va. Code. Ann. § 2.2-3904(B). The 2022 Model Policies require school districts to engage in precisely the conduct prohibited by the Human Rights Act, depriving nonbinary and transgender students of equal access to school facilities and services, segregating them out of school-based facilities and activities, and discriminating against them, all based on the students’ gender identity. The 2022 Model Policies will contribute to a climate of fear and stigmatization that will likely force some students into hiding who they are, which in turn places them at great risk for negative health outcomes such as depression, anxiety and suicide. The 2022 Model Policies will exacerbate the discrimination and harassment that openly nonbinary or trans students already experience. 

Second, the Guidance Document also violates Virginia’s Constitution by infringing on the constitutional authority of local school boards to protect nonbinary and transgender students. As the Virginia Attorney General’s office has clarified, local school boards hold constitutional authority to create non-discrimination law pursuant to the implied powers under Article VIII, §7 of the Constitution of Virginia. See https://www.oag.state.va.us/files/Opinions/2015/14-080_Ebbin.pdf. The 2022 Model Policies seek to usurp that right by mandating policies that would gut the protections that local school boards have established and seek to prevent them and other local school boards from enacting similar provisions protecting nonbinary and transgender students. As a result, the Guidance Document is contrary to law. 

II. The 2022 Model Policies are contrary to federal law.  

Several provisions of the 2022 Model Policies are also contrary to the Fourteenth Amendment to the U.S. Constitution and Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681(a), et seq. Most notably, sex-based classifications that target nonbinary and transgender students for discriminatory treatment violates the constitutional mandate of equal protection where, as here, the so-called “model policy” is replete with hypothetical assertions, reliance on sex stereotypes, as well as sheer conjecture and abstraction. See Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 614 (4th Cir. 2020),?cert. denied, 141 S.Ct. 2878 (2021). That the VDOE abandoned its duty to consider “evidence-based best practices” or data “regarding transgender students” when formulating the 2022 Model Policies, as explained above, further underscores the constitutional infirmities of the proposed changes and their underlying justifications. “The insubstantiality of the [VDOE’s] fears has been borne out in school districts across the country” and, even within Virginia, “where community members espoused similar fears at school board meetings before anti-discrimination measures, none of those fears have materialized.” Id. (emphasis added). Put simply, like the policy excluding transgender students from restrooms matching their gender identity and refusing to correct educational records in Grimm, the 2022 Model Polices are “marked by misconception and prejudice” against nonbinary and transgender students. Id. at 615; see also Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620 (1996). 

Similarly, several provisions of 2022 Model Policies also violate the Title IX’s prohibition against sex discrimination. Grimm, 972 F.3d at 619. The Fourth Circuit had “little difficulty” holding that under Title IX, “discriminating against a person for being transgender is discrimination ‘on the basis of sex’” Id. at 616 (citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020)). 

These constitutional and statutory nondiscrimination requirements apply to all educational programs and activities and require school districts to ensure that transgender and nonbinary students have full and equal access to every aspect of school life. The 2022 Model Policies violate these basic principles of federal law. 

A. The 2022 Model Policies violate federal law by excluding transgender and nonbinary students from sex-segregated facilities that accord with their gender identities. 

There can be no question that a policy that excludes transgender and nonbinary students’ access to sex-segregated facilities that correspond with their respective gender identity is contrary to federal law. The Fourth Circuit’s decision in Grimm is binding authority upon all public schools in Virginia, and nevertheless, the 2022 Model Policies embrace confusion, exclusion, and stigmatization by utilizing a default standard relegating all students to facilities based upon “biological sex.”  The 2022 Model Policies pay lip service to this binding precedent, embedding exclusion of transgender and nonbinary students from facilities that accord with their gender identities as the starting premise, and placing the burden on those students to wage legal battles in order to obtain the equal access the law already requires. The 2022 Model Policies further bar transgender and nonbinary students from all other sex-based facilities, programs, and activities, but the force of reasoning in Bostock and Grimm equally applies to all of these impermissible sex-based policies that seek to marginalize and discriminate against nonbinary and transgender students.  

B. The 2022 Model Policies violate federal law by excluding transgender and nonbinary students from participating in school athletics in accordance with their gender identities.  

In limiting students’ participation in sports to activities consistent with the student’s so-called “biological sex,” VDOE proposes an unlawful standard. Courts across the country have concluded that Title IX and the Equal Protection Clause preclude public schools and recipients of federal financial assistance from effectively barring transgender from participation in athletic opportunities. See, e.g., B.P.J. v. W. Virginia State Bd. of Educ., 550 F. Supp. 3d 347 (S.D.W. Va. 2021); Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020).  

C. The 2022 Model Policies elevate the purported rights of third parties over the rights of transgender and nonbinary students to be free from discrimination and harassment in school in violation of federal law. 

To the extent the 2022 Model Policies seek to curtail the legal protections of transgender students to meet the putative concerns of cisgender students and parents, such interest is contrary to existing law. Federal courts have long rejected the Department’s suggestions that such speculative interests of other students and parents must be “balanced” by discriminating against transgender students. For example, the Third Circuit held that a District Court’s refusal to enjoin a school from permitting transgender people to use sex-segregated restrooms was proper because the mere presence alone of a transgender person in a bathroom is not sufficient to establish a sexual harassment claim. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 536 (3d Cir. 2018), cert. denied sub nom. Doe v. Boyertown Area Sch. Dist., 139 S. Ct. 2636 (2019). In discussing the harm caused to transgender people by forcing them to use single-user facilities instead of the restroom designated for members of their sex, the court recognized that excluding transgender students “would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as the price of attending their public school.” Id. at 530. See also Cruzan v. Special Sch. Dist., No. 1, 294 F.3d 981, 984 (8th Cir. 2002) (school’s policy of allowing a transgender woman to use the women’s faculty restroom did not create a hostile working environment for teacher who objected.); Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020); Students v. United States Dep’t of Educ., No. 16-CV-4945, 2016 WL 6134121, at *1 (N.D. Ill. Oct. 18, 2016), report and recommendation adopted sub nom. Students & Parents for Privacy v. United States Dep’t of Educ., No. 16-CV-4945, 2017 WL 6629520 (N.D. Ill. Dec. 29, 2017). The Department’s nod to vague “concerns” or “interests” of third parties does not remotely justify the deprivation of rights of transgender students or the protection of the laws that prohibit discrimination in government settings. 

Furthermore, the 2022 Model Policies improperly defer to teacher speech and religious rights by permitting them to refer to students using names and pronouns that do not correspond with their gender identity even when the student’s parents have made clear to the school district in writing that their child is transgender or nonbinary.  The Guidance Document alludes to certain “constitutionally protected rights” that prohibit schools from compelling staff to refer to nonbinary and transgender students in accordance with their gender identity. But such a provision is improper and contrary to law. Not only are public school teachers’ free speech rights limited, see Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), but discrimination and harassment are conduct, not speech, and receive no protection under the First Amendment. See, e.g., Rumsfeld v. F. for Acad. & Inst. Rts., Inc., 547 U.S. 47, 62 (2006) (“[I]t has never been deemed an abridgment of freedom of speech … to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”). 

As for a teacher’s religious rights, a school’s desire to accommodate those rights is limited when such accommodation would harm third parties. See Est. of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985); see also Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2787 (2014) (Kennedy, J., concurring) (explaining that religious exercise cannot “unduly restrict other persons . . . in protecting their own interests”). Permitting teachers to misgender transgender and nonbinary students causes precisely this type of serious to their physical and mental health. https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH%20Identity%20Recognition%20Statement%2011.15.17.pdf. The Guidance Document’s deference to these rights is therefore unlawful.  

D. The 2022 Model Policies infringe the privacy rights of transgender and nonbinary students in violation of federal law. 

Furthermore, in light of VDOE’s baseless, manufactured definitions of both “sex” and “transgender student,” the 2022 Model Policies require school personnel to use names and pronouns that are inconsistent with many transgender and nonbinary students’ gender identities. 

Not only is requiring personnel to improperly address nonbinary and transgender students with names and pronouns that are inconsistent with who they are deeply harmful, it also infringes upon their privacy by “outing” them to other students and staff, thereby stigmatizing them placing them at risk of further harassment and discrimination and singling them out among their peers. Students do not leave their privacy rights at the classroom door, and students have a reasonable expectation of privacy against an unauthorized disclosure of their gender identity and the only interest of the school in providing such information is an unsubstantiated concern over parental rights. See Nguon v. Wolf, 517 F. Supp. 2d 1177 (C.D. Cal. 2007). 

III. CONCLUSION  

For all of the reasons identified in this comment, the 2022 Model Policies are contrary to state and federal law. We strongly oppose the 2022 Model Policies and urge the Department to rescind this Guidance Document.