Referring to the Virginia Department of Education’s (VDOE) 2023 model policies for the treatment of transgender students, attorney Wyatt Rolla of the ACLU of Virginia said Governor Glenn Youngkin’s (R) administration is “throwing school districts under the bus to advance its own dangerous anti-trans political agenda.”
The new model policies, which replace the ones published by the VDOE in 2021, require teachers to use a student’s legal name and the pronouns associated with their “biological sex” unless a parent submits written instructions to use a different name or pronoun. Even when parents do submit written instructions, the policies allow teachers to ignore them and continue to use the wrong names and pronouns.
Additionally, the policies would require students to use bathrooms and locker rooms “that correspond to his or her sex, except to the extent that federal law otherwise requires,” and participate in athletic programs based on their assigned sex, except as required by law.
“The important thing to remember is that these model policies cannot and do not change school districts’ obligations under existing federal and state law to protect trans students from discrimination,” Rolla told LGBTQ Nation. “The Youngkin administration’s VDOE has put school districts in an impossible position by finalizing model policies that contain a myriad of provisions in fundamental conflict with those nondiscrimination obligations, exposing school districts who adopt them to legal liability.”
The model policies say they follow state and federal non-discrimination laws. However, Rolla points out that one policy seeks to limit access to bathrooms and locker rooms in violation of the federal case Grimm v. Gloucester. In that case, courts found that Gloucester County School District violated a student’s rights when it prevented him from using the boy’s restrooms. The court also ruled that single-stall bathrooms were not an acceptable alternative, which the 2023 model policies appear to ignore.
The largest school district in Virginia has chosen not to change its existing policies. “We have concluded our detailed legal review and determined that our current Fairfax County Public School (FCPS) policies are consistent with federal and state anti-discrimination laws as required by the new model policies,” said Superintendent Michelle Reid Ed.D. of FCPS in a message on August 15. FCPS serves over 10 percent of Virginia’s student population.
According to Superintendent Reid, students will continue to: “be addressed by their chosen names and pronouns,” “be provided with access to facilities, activities, and/or trips consistent with their gender identity,” and “have their privacy respected regarding gender expansive or transgender status, legal name, or sex assigned at birth.” Reid referred to FCPS Regulation 2603 throughout the message and directed community members to the school district’s LGBTQIA+ Student Resources and Supports page for more information.
The 2023 model policies faced strong opposition from state residents, students, and civil rights groups. In fact, they were first proposed in September of last year, but by the end of the 30-day public comment period, over 70,000 comments had been submitted. According to the ACLU of Virginia, a majority of the comments opposed the new policies. After nearly a year of review, the policies were published “with mostly conclusory statements that the model policies do not violate state or federal law,” said the ACLU of Virginia.
Opponents of the new policies highlight the ways that they may harm LGBTQ+ students. Rolla told us that “there are ample studies – including Virginia-specific surveys – that demonstrate the devastating impact of a lack of affirming policies.” Schools that do not protect trans, nonbinary, and gender-expansive students see “lower school attendance, lower self-esteem, higher rates of depression, and higher rates of physical and sexual assault than schools that affirm and include those students,” said Rolla. “Before the 2023 model policies, in Virginia, already more than half of LGBTQ+ students experienced one form of discrimination in school.”
Transgender and gender-expansive students at FCPS confirmed this for their school board in public comment sessions last year. One student, known as Student F, shared that they were posted to an Instagram page “specifically for targeting LGBTQ+ kids.” The post shared their location in the school. The student explained, “They wanted me to get beaten up to humble me.” Student F said they have been the target of slurs, violence, and sexual harassment since the post was made. They also said that when they tried to “repress” who they were to stop the harassment, they became suicidal.
Another student, identified as “Student 2” during public comment, talked about their experience with a teacher who continued to misgender them even after being corrected. “I’ve also had difficulty with a teacher in my middle school, who would not stop calling me “she/her” or “ma’am,” despite me informing this teacher I did not want to be addressed as a girl,” the student said. “She continued to recommend me books about the Bible and that are related to God.”
At this there was an audible, “Oh my god!” from the crowd.
“Staff training should accentuate respect for student identity despite the teacher’s different religious views,” the student finished.
These student testimonies show how difficult attending school as a trans student can be, even when the school district is working to create a safe environment for them to study. In her August 15 message, Superintendent Reid affirmed that goal: “Let me be clear that FCPS remains committed to fostering a safe, supportive, welcoming, and inclusive school environment for all students and staff, including our transgender and gender expansive students and staff,” Reid told the community. “We know that students can only learn effectively when they feel safe and supported.”
Rolla echoed Reid’s sentiment, declaring, “Affirming policies are a critical part of providing a quality education to students.”