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Virginia transgender student rules likely to spark new phase of legal battles

Under the Republican governor’s proposed model policies, students must use bathrooms corresponding with their sex at birth.

FAIRFAX, Va. (CN) — In much the same way some members of the older generation once believed an adolescent with shaggy hair would inevitably become a hippy and experiment with drugs, some Virginians now fear losing control of their children in LGBTQ-friendly schools.

To read comments posted online about new model policies for schools' treatment of transgender students is to grasp the depth of this misunderstanding.

“Make bathrooms safe again,” reads one post. “Kids deserve better. Stop the indoctrination.”

Another writer doesn't trust teachers: “STOP GROOMING CHILDREN!! Kids are falling behind while teachers push this agenda!”

And there is this from still another: “Governor, please identify and investigate all teachers on here [the forum] opposing parental involvement.”  

The deadline to post comments on the forum in which these posts appear is Wednesday at 11:59 p.m. If comments assert the proposed new rules are contrary to state laws, the review period can be extended for an additional 30 days. 

A comment submitted by the ACLU of Virginia does exactly that: "These model policies are contrary to state law and their adoption will result in rampant violations of the rights of students, parents, and school personnel, and will inflict serious harm on transgender and nonbinary students. ACLUVA demands that the administration retract the 2022 model policies."

Like policies from the previous administration of former Democratic Governor Ralph Northam, the new regulations under Republican Governor Glenn Youngkin forbid bullying and harassment. But they could also force big changes in Virginia school districts, many of which had attempted to accommodate transgender students under their own policies.

Under the Youngkin model policies, all students must use bathrooms that correspond with their sex at birth. School personnel "shall refer to each student using only the pronouns appropriate to the sex appearing in the student’s official record," according to the guidelines, and students who want to play sports can only participate on teams that align with their birth sex.

The proposed rules define a transgender student as one whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs from their sex, that their child be so identified while at school.

To be sure, the impact is limited. In a high school with 1,000 students, there would probably be fewer than five transgender students, speculated Cris Candice Tuck of the group Equality Loudoun. Even so, like other LGBTQ advocates, Tuck worries about the consequences of outing students to parents unprepared for the information.

 A muddle of model policies     

The notion that parents had been cut out of the loop was at the center of Youngkin’s complaints about transgender policies left by the administration of his predecessor, Northam.

That first set of policies aimed to help school districts navigate an issue ripe for litigation. Already, a notable Virginia case had set a precedent: Gavin Grimm, a transgender boy, successfully sued the Gloucester County school system in 2015 over access to the boys’ bathroom.  

The school system appealed but came up short at the Fourth Circuit and again at the nation's highest court last year.

“The Supreme Court denied taking up cert and so we had this decision from the Fourth Circuit that school districts can’t implement a policy that’s going to discriminate against trans students under Title IX,” recounted Eden Heilman, legal director of the ACLU of Virginia, referring to a landmark federal law prohibiting sex discrimination in the education system.

Another lawsuit focused on the firing of a teacher, Peter Vlaming, who refused to use male pronouns for a transgender boy. That case is being taken up by the Virginia Supreme Court.

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As cases began moving through the courts, a Pandora’s box opened: Which pronoun should be used when speaking to transgender student? Which bathroom would they use? What if they want to be addressed by a different name? Must parents know all of this?

The Virginia Legislature passed a law calling for the state’s Department of Education to use evidence-based best practices to develop model policies on issues involving transgender students in public elementary and secondary schools.

“The idea behind the statute and the model policies was: How can we provide guidance that will help school districts avoid litigation like the Gloucester County School District case?” Heilman said.

But with a change of administrations, the policies were affected by shifts between blue and red governments.

Under the Northam model policies, for example, if a student wanted to use another name or pronoun, “school staff should abide by the student’s wishes as to how to address the student.”

But Youngkin's guidelines state that “practices such as compelling others to use preferred pronouns is premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex. Many Virginians reject this belief.”

The Northam policies drew criticism for a provision that some believed would give teachers or administrators carte blanche to keep information from parents. The policies also relied on research, including a study showing gay and transgender youth have a 120% higher risk of experiencing homelessness compared to youth who identified as heterosexual and cisgender.

The old guidelines were also nuanced, replete with qualifiers: "School divisions will need to consider the health and safety of the student in situations where students may not want their parents to know about their gender identity, and schools should address this on a case-by-case basis."

But nuance doesn’t translate on social media.

“People have so little knowledge of transgender issues,” Tuck observed, “that these arguments can be taken wildly out of context.”

Conflicting views of law   

The state law that called for the creation of the model policies came with an Achilles heel.

"The state acknowledged that there was no enforcement mechanism from the Legislature," Tuck said. "And from that standpoint, one of the arguments we are going to be making is that if the state was not willing to support the prior [Northam] policy, there is no legal requirement to enforce this new policy."

The ACLU is clearly watching what happens in Virginia, though Heilman said she could not discuss the organization's legal strategy moving forward.

“The statute itself gives the Department of Education authority to implement model policies that are evidence-based. These policies [by the Youngkin administration] are not evidence-based,” she said. “They are actually the opposite. There’s no indication that they were drafted or based on any evidence.”

Both the Northam and the Youngkin policies made dutiful note of relevant law – but from dramatically different points of view.

“To me the most significant thing is how they balance this [new guidance] with their Title IX obligations,” observed Carol Ashley, an attorney with Jackson Lewis.

Under the Northam model policies, Title IX was defined as “a federal law that prohibits schools that receive federal financial assistance from limiting or denying a student’s participation in any school program on the basis of sex. This may be understood to prohibit discrimination, including sexual harassment based on sex stereotypes, sexual orientation, and gender identity or transgender status."

The Youngkin policies describe the same law as forbidding “discrimination on the basis of sex by educational institutions receiving federal funds. Title IX permits the separation of students by sex for assignment to sleeping quarters … and its implementing regulations similarly provide for sex-separated toilet, locker room, and shower facilities. The Protection of Pupil Rights Amendment prohibits the use of certain surveys, including surveys on ‘sex behaviors and attitudes,’ without parental consent.”

The differing perspectives raise the question of what policies would comply with Title IX. For example, if teachers cannot call a student by their preferred pronoun, is that harassment? Is it discrimination if students can’t go to the bathroom that conforms with their gender identity?

“It’s not the first time a policy has shifted in a different way based on changing administrations,” Ashley said. “Schools know how to move forward within this rubric. I think school districts will look at it and decide how they are going to proceed in due course.”

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