LYNCHBURG, Va. (CN) — A Virginia judge had tough questions for conservative groups Wednesday afternoon in a dispute hoping to block the state from implementing transgender-inclusive policies in the upcoming school year.
The Virginia Department of Education claimed the policies “address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures” and their promulgation was required under legislation passed last year. But several parents and Richmond-based conservative groups, the Founding Freedoms Law Center, the Christian Action Network and the Family Foundation of Virginia, claim the policies infringe on teachers' First Amendment rights alongside the rights of parents.
But issues about the parents and groups’ standing — or their ability to file suit — plagued the late afternoon hearing.
While Family Foundation attorney James Davids said the core issue was the department's failure to follow administrative procedures by not properly responding to their public comments, Judge James Watson pointed to sections of their complaint which featured a response from the agency.
“They must respond to any comment that makes a clear challenge to the policy under the law,” Davids argued. “There were over 9000 comments.”
“You think every response should be individualized?” Judge Watson replied, before wondering if such logic would give any public commenter standing to file suit.
Other questions about the finality of the policies or punishment for failing to take part were similarly present.
“If a school district doesn’t adopt the policy, do they have any harm?” Watson asked attorney David Carrol who appeared via Zoom and represented the plaintiff groups.
“They will eventually, yes,” he responded. “Not now, but they might when the department comes to enforce the rules.”
Watson also questions whether the faith groups had cleared the hurdles required for the injunctive relief they sought.
"This seems like a bell you can unring," he said, suggesting, even if harm were to come, a final ruling from the court could force the rollback of the policies as needed.
But that didn't stop the plaintiffs from engaging in more speculative claims, including fears about transgender people sexually abusing other students and concerns for teacher’s faith-based right to misgender students.
But Assistant Attorney General Melissa Charnes who represented the agency said any fears about the state's Department of Education ever coming after school boards for failing to follow the policies were misguided. Instead she noted there’s no enforcement mechanism within the model policy statute, meaning there’s no punishment for a school board if they fail to pass inclusive policies as the model policy document guides.
"Will the state come after a school board's funding if they don't pass these policies?" Watson asked.
"No," she responded.
But she had a warning for those who refused about the transgender students who will eventually enter their school systems: “No matter what this court does the school boards will have to address the needs of transgender students.”
Wednesday’s hearing continues Virginia’s record as a state which could be tasked with how schools address transgender students' needs.
Just last month former Gloucester student Gavin Grimm had his right to use the bathroom aligned with his gender identity affirmed after the U.S. Supreme Court refused an appeal from his school district. The years long battle established nationally the right for transgender students to use their chosen restroom in line with the high court’s earlier ruling in Bostock v. Clayton County which established discrimination against transgender people as a violation of the 14th Amendment’s equal protection clause under gender.
But parts of the Virginia’s inclusive model policy for schools are already facing hurdles in other local courts.
In one dispute, Loudoun County Elementary School teacher Byron Tanner Cross had a judge overturn his termination after he told school board members at a public meeting he would never “affirm that a biological boy can be a girl, and vice versa,” something the new policy recommends.
The school board terminated him but he quickly appealed and won support from Loudon County Judge James Plowman Jr. who said his “interest in expressing his First Amendment speech outweigh the Defendants interest in restricting the same.”
The judge relied on a balancing test which demands a certain level of impact on the actual teaching process, however he found the comments made at the school board meeting failed to “meaningfully disrupt the operation or services of Leesburg Elementary School."
Lawyers for the county have already appealed that ruling to the Supreme Court of Virginia.
“A public school teacher’s right to free speech and free exercise of religion do not outweigh the School Board’s right to protect students from discrimination,” attorney Stacy Haney with the Richmond-based Haney Phinyowattanachip, on behalf of the country in their appeal to the state’s highest court. The appeal points to Cross’s public condemnation of the proposed policy, including the anti-transgender comments, which the school believes justified his removal “based on the anticipated and actual disruption that resulted when multiple parents demanded that their children have no contact with Respondent.”
Meanwhile, the model policies are facing hurdles at local school boards around the state.
The Family Foundation claimed as many as 500 residents of Russel County attended one meeting to demand the board refuse to follow the new guidelines.
It worked, and by a 7-0 vote the country plans to ignore the trans-inclusive language.
Attempts to reach the Virginia Attorney General’s office or the school board for comment on the vote were not returned by press time.Follow @@BradKutner
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