Metro Weekly

Virginia “Model Policies” Require Schools to “Out” Trans Students

Policies restrict trans kids to using single-stall restrooms, and allow other students and teachers to misgender trans students.

Classroom – Photo: Taylor Wilcox, via Unsplash

The Virginia Department of Education has issued new “model policies” that effectively strip away some of the rights and protections that transgender students have enjoyed in Virginia’s more liberal-leaning school districts in recent years.

The 2022 policies, which reflect the priorities of Republican Gov. Glenn Youngkin’s administration, replace the department’s 2021 model policies adopted under former Democratic Gov. Ralph Northam. Youngkin, who was swept into office on a platform of “parental rights,” bolstered by a wave of resentment and anger stemming from school closures during the COVID-19 pandemic and lesson plans touching on hot-button social issues like racism and LGBTQ rights, has made parental notification the cornerstone of his administration’s policies.

With respect to transgender students, that means that any student who “comes out” at school or asks to be called by another name, a nickname, or pronouns that don’t match their assigned sex at birth, must be “outed” to their parents, even if they approach a teacher or counselor in confidence.

Under the new policies, a child will only be recognized as transgender and have their gender identity affirmed — including with respect to gender markers on school records, transcripts, and pronouns — if a parent requests, in writing, that such accommodations be made. Otherwise, teachers must refer to a student by their birth name and use pronouns matching the student’s assigned sex at birth.

For purposes of interpreting existing Virginia laws that govern schools, any statute referring to “sex” will be interpreted as referring only to an individual’s assigned sex at birth.

The department’s new policies criticize the 2021 “model policies” — which were only fully adopted by a handful of school districts, while more conservative areas resisted adopting them — “promoted a specific viewpoint aimed at achieving cultural and social transformation in schools” and “disregarded the rights of parents.” The new policies were allegedly crafted to conform with existing Virginia law while taking into account 9,000 comments from parents and community members made during the 2021 public comment period.

Under the policies’ “Guiding Principles” section, parental rights are centered, with parents having the right to make decisions about everything relating to their child’s education, from what they are taught to how schools treat them. School boards throughout the commonwealth are expected to adopt policies consistent with the revised guidelines released by the Department of Education.

Under the policies, each student’s individual needs are supposed to be taken into account by school administrators, and school staff are expected to, in consultation with parents, implement “reasonable accommodations or modifications, taking into account the resources and staff available in the school and school divisions, as well as the rights and needs of other students and of school staff.”

For instance, with respect to pronouns, even if a parent requests their child be called by a pronoun that does not match their assigned sex at birth, teachers are allowed to misgender students based on their personal beliefs, and even teachers who are trans-friendly are prohibited from requiring other students to respect a trans student’s gender identity. Requiring such acknowledgment is prohibited under the policy, because it violates the free speech and freedom of religion of gender identity skeptics by forcing them to abide by “the ideological belief that gender is a matter of personal choice or subjective experience, not sex.”

The new “model policies” also dictate that single-user bathrooms and facilities should be made available to transgender students, but does not allow them to use facilities matching their gender identity. Interestingly, that would appear to violate current legal precedent, given the 4th U.S. Circuit Court of Appeals’ determination, in 2020, that Gloucester County’s restroom policies — based on students’ assigned sex at birth — violated the rights of transgender student Gavin Grimm under both the Equal Protection Clause of the U.S. Constitution and Title IX of the Education Amendments, which prohibits sex-based discrimination in educational settings.

Because Virginia falls under the jurisdiction of the 4th Circuit, a transgender student could likely appeal a policy they believe is discriminatory, similar to Gloucester County’s — especially if the single-user facilities made available are considered “inferior” to multi-user facilities — that bars them from the restroom matching their gender identity. Such a challenge would presumably be upheld by the courts, especially if the U.S. Supreme Court, as it has in the past, declines to hear such a challenge, which would allow 4th Circuit precedent to stand. 

The policies do not specifically address sex-based dress codes or student participation in non-sporting, sex-specific school activities or events, although presumably those would be worked out as part of the “accommodations” schools are supposed to make for transgender students in consultation with their parents.

Nicole Neily, the president and founder of Parents Defending Education, told Fox News that gender issues in the classroom are a major cultural flashpoint and praised Virginia for adopting the new standards based on parental feedback.

“Polling consistently shows that when it comes to the topic of gender in schools, parents worry about fairness, safety, and the preservation of parental rights — and that these concerns transcend both racial and political lines,” she said. “Today, Virginia has shown that it is listening to parents through its new proposed guidelines, and we are grateful for their responsiveness.”

The conservative Independent Women’s Forum praised the policies as a victory for parents who balked at the prospect of more liberal school jurisdictions affirming students’ transgender identities without informing on them to their parents.

“Schools should not actively hide information from parents,” Ginny Gentles, the director of the Independent Women’s Forum’s Education Freedom Center, said in a statement. “In Virginia, parents have the right to direct the education, upbringing, and care of their children, and IWN members notified Governor Youngkin that their rights were being violated by state policies. We are relieved that the governor has responded by revising the state policies, and the state is no longer instructing schools to craft secretive Gender Support Plans without parental consent when a child requests a new name, pronouns, and gender identity.”

Equality Virginia, the state’s top LGBTQ rights organization, blasted the rescission of the 2021 policies and said the new policies would forcibly “out” students to their parents, making them potential targets for abuse, and would allow other students to harass, demean, or discriminate against trans and nonbinary students.

“By outing our students that have not had conversations with their parents the Virginia Department of Education is willingly subjecting LGBTQ+ students to abuse We all want LGBTQ+ youth to have families that love and support them for who they are — and growing numbers of them do. But there continue to be some who would face rejection and even abuse if they were forcibly outed to unsupportive families,” the organization said in an email to supporters. “Equality Virginia will do everything we can to oppose this policy and will continue to hold the Youngkin administration accountable. In the coming days we’ll provide more information before a public comment period opens on September 26.”

Pride Liberation Project, a collective of LGBTQ students, called on the Virginia Department of Education to revoke the proposed policies, which they accused of “politicizing” LGBTQ existence and predicted will harm students in the long term.

“As a closeted student, I wouldn’t be able to come home if my parents found out that I was Queer. I am terrified that these draft regulations will take away one of the few places I can just be myself,” a student from Fairfax County said in a statement released by the group.

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