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

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.”

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit