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A Virginia judge has dismissed a lawsuit challenging the Virginia Department of Education’s adoption of “model policies” for how school districts should treat transgender children, ranging from their use of their preferred name and pronouns to their ability to access restroom facilities consistent with their gender identity.
On Tuesday, Judge J. Frederick Watson, of the Lynchburg Circuit Court, rejected a lawsuit brought by several conservative activist organizations and the families of public school students aimed at overturning the department’s model policies, which were crafted in response to legislation passed last year by lawmakers in Richmond.
The model policies are not one-size-fits-all, nor are they necessarily consistent from county to county. In March, the Virginia Department of Education noted, in guidance accompanying the model policies, that local school boards simply had to adopt policies “consistent” with the goals of the model policies, although schools would be given leeway in terms of what those policies looked like, and some districts could adopt policies that are even more robust than the model policies.
“Given the broad range of topics to be addressed by local school boards relating to the treatment of transgender students, it is likely that multiple policies will be needed in different categories rather than a single policy,” the guidance reads. “Existing policies and regulations may also need to be expanded or clarified to be more gender-inclusive or to emphasize specific protections for transgender, nonbinary, and gender-expansive students…. Local school boards may adopt example language in the model policies or use it as a guide to draft policies that meet the unique needs of their school division.”
The groups suing over the policies, including the Christian Action Network, Founding Freedoms Law Center and the Family Foundation of Virginia, claimed that the model policies, which provide guidelines for policies or provisions that school districts may adopt, infringe on the First Amendment rights of teachers and parents who oppose homosexuality or believe that gender is binary and fixed at birth. The plaintiffs also argued that the department failed to follow administrative procedures by not properly responding to their concerns during the 30-day-public comment period.
After the lawsuit was filed, attorneys for the commonwealth argued that the case should be dismissed because the plaintiffs do not have standing, writing: “The appellants cannot claim that they are aggrieved on the basis of their speculation about the kinds of policies that school divisions may adopt and how they might be implemented or enforced.”
Watson agreed with the state’s contention in a six-page ruling dismissing the lawsuit.
“In these cases, the appellants do not have standing to challenge the model policies. Their dissatisfaction with the VDOE’s response to their comments does not create an immediate, pecuniary, or substantial interest in this litigation, but only a remote or indirect interest,” he wrote. “They have not identified or alleged any personal property or right, legal or equitable, that they have been denied. They have not identified any burden or obligation imposed upon them different from that suffered by the public generally.
“Instead, their concerns are indirect, advancing a perceived public right, and anticipating a public injury that may or may not occur. They do not claim that the model policies apply to or have had an effect on them, nor do they assert that their particular school boards have adopted the model policies or any policies consistent with the model policies.
“Because the model policies are directed only to school boards, they cannot affect or aggrieve anyone other than the school boards. The model policies cannot affect or aggrieve someone if the local school board has already adopted similar policies before the development of any model policies,” Watson added.
“They would not affect or aggrieve someone if the local school board, despite any potential repercussions, declines to act on them. Thus, the model policies do not affect or aggrieve the appellants, and the appellants remain unaggrieved and unaffected absent actions related to the model policies taken by school boards.”
Virginia Attorney General Mark Herring, who defended the commonwealth’s right to issue guidance and adopt baseline guidance for school districts on how to craft transgender-friendly policies, celebrated Watson’s decision to dismiss the lawsuit.
“Every single child who goes to school in the Commonwealth deserves a positive, safe, nurturing learning environment, without the fear of discrimination or harassment simply because of who they are,” Herring said in a statement. “We must do all we can to ensure that transgender, nonbinary, and gender-nonconforming students feel supported and protected and this model policy gives school divisions the roadmap to doing just that in their schools. I am incredibly proud of the work my team did defending Virginia’s model policy for transgender students and I hope that today’s win shows young people all over the Commonwealth that they will be supported here.”
Fairfax County School Board member Karl Frisch (Providence), who is the board’s first out LGBTQ member, also praised Watson’s ruling. Earlier this month, the Fairfax County School Board adopted an updated policy that enumerates the rights and protections to which transgender students in the school system are entitled.
“Hate and bigotry have no place in our schools. The court was right to dismiss these misguided lawsuits, which amounted to little more than a cruel attempt to turn the clock back and strip transgender students of critical protections,” Frisch said in a statement. “Adopting policies that align with the Virginia Department of Education’s guidance helps demonstrate our commitment to the success and safety of all students.”
Robert Rigby, the head of FCPS Pride, a group representing parents and teachers who are either LGBTQ themselves or are the parents of LGBTQ children, called Watson’s decision “a very personal affirmation” of transgender students’ (and their parents’) ability to “participate as equals in our schools.”
“The decision doesn’t have an immediate effect on Fairfax because we, along with Arlington and Portsmouth, already have solid regulations and policies, but it adds heft and another layer of protection,” Rigby told Metro Weekly in an email.
“Alas, there seems to be a public relations campaign in rural parts of the state to stir up animosity towards trans students — even in places not considering these policies. In Fairfax, so far, such things have been restricted to email writing and ill-attended webinars.”
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