Two Virginia law professors are questioning the legality of new model policies the Youngkin administration released quietly last week that rewrote Virginia Department of Education policies that protect transgender students in order to emphasize parents’ rights.
The newly proposed “2022 Model Policies On The Privacy, Dignity And Respect For All Students And Parents In Virginia’s Public Schools” are set for a 30-day public comment period that will begin Monday before they take effect — but they could face legal challenges.
“I think the guidelines themselves are on very legally shaky grounds, frankly,” Craig Konnoth, a University of Virginia School of Law professor, said in an interview Monday. “I think the guidelines are confusing, and I think they haven’t been thought out [and] I don’t think they’re supported by substantial evidence.”
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“While the Youngkin administration does want to strip away the rights of transgender students, federal law prevents them from doing so completely,” Konnoth added.
The model policies will require students to use school bathrooms that match the sex they were assigned at birth “except to the extent that federal law otherwise requires.” The document cites the case of Grimm v. Gloucester, in which the 4th U.S. Circuit Court of Appeals in Richmond found in 2020 that the Gloucester County School Board violated former student Gavin Grimm’s constitutional rights when it banned him from using the boys school bathrooms.
The new policies also specify student participation in school athletics and activities shall be based on “biological sex” and require parental approval of changes to a student’s name, along with any nicknames or changes in pronouns.
“So on one hand the guidelines are, I think, seeking to score political points by saying biological sex trumps, but on the other hand, they recognize that federal courts will step in,” Konnoth said.
The Youngkin administration’s model guidelines repeatedly assert parents’ rights to make decisions with respect to their children’s upbringing. They cite U.S. Supreme Court rulings and a Virginia law that says: “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”
A spokesperson for the state Department of Education said Monday that staff will review all submitted comments after the public comment period closes. The document will take effect upon final approval by Superintendent of Public Instruction Jillian Balow.
The new model policies direct school boards around the state to adopt policies “that are consistent with, but may be more comprehensive than the model policies” — something that hasn’t fully happened with the 2021 policies that regarded the treatment of transgender students.
The 2021 model policies released under then-Gov. Ralph Northam, a Democrat, were enacted at the direction of General Assembly legislation passed in 2020.
Asked for comment, Macaulay Porter, a spokesperson for Gov. Glenn Youngkin, referred questions to Charles Pyle, a spokesperson for the Department of Education.
Pyle said Monday: “The 2020 legislation (House Bill 145 and Senate Bill 161) directed the department to develop model policies and guidance covering the enumerated topics. There is no language in the legislation requiring the department to submit revisions to the guidance document to the General Assembly.”
Carl Tobias, a University of Richmond law professor, said Monday that he thinks the administration needs authority from the General Assembly before rolling out new proposed guidelines.
“They can’t just change it because they don’t like it,” Tobias said. “The Governor and the [V]DOE need to respect the General Assembly because the General Assembly is a co-equal branch of the government. That’s where the problems are in terms of legal authority to do what they did.”
Del. Danica Roem, D-Prince William — who in 2018 became the nation’s first openly transgender state legislator — agrees. She said the latest model policy is in violation of the Virginia Human Rights Act — which says it is state policy to safeguard individuals from unlawful discrimination in educational institutions — and noted Grimm’s federal case as well.
“Whether you are arguing this at the Virginia state code level, or whether you are arguing at the federal level, the Grimm versus Gloucester County School Board — the governor is wrong and does not have the authority to do what he’s doing,” she said.
According to a school board policy tracker that Equality Virginia, an LGBTQ+ advocacy group, recently launched, only 13 school boards in the state have fully adopted the 2021 policies while others have rejected them or partially adopted them.
Ahead of Monday evening’s Richmond School Board meeting, member Liz Doerr, who represents the 1st District, announced by email that she would introduce an “RPS Transgender Student Protection Resolution” during the meeting.
The resolution states that the RPS School Board rejects the proposed guidelines and instead “affirms its commitment to providing protections for all students regardless of sexual orientation, gender identity or gender expression.”
Augusta County was among school boards in Virginia to reject adopting the Northam administration’s 2021 model policy.
Jane Kitchen, 14, who is gender-fluid and attends Wilson High School in Augusta County, said that while not all of their classmates have been respectful of their identity, staff and faculty have been.
“I have gotten a couple of like ‘oh, she’s a boy and stuff’ but yeah, the teachers and the staff both have been really nice,” Jane said in an interview.
Jane explained that they have never really felt fully “like a girl.” By the time they were in fourth grade, they began talking with their family about their gender identity.
They are concerned for transgender or nonbinary students who don’t have a supportive home life or attend a school where staff does not accommodate their gender identity.
“I know one student who definitely would not feel safe at home,” they said.
Roem shares the concern about students who don’t receive support and worries that the policy could embolden students who are bullying their transgender and nonbinary peers.
(The new model policies say that the school division “prohibits all discrimination, harassment, and bullying based on actual national origin, race, religion, sex, disability, political beliefs, or any other characteristic protected by law.”)
Jane’s mother — Jennifer Kitchen, a Democrat who ran unsuccessfully for the House of Delegates last year, losing to Del. Chris Runion, R-Rockingham — added that their household “acts as a support network” for some of Jane’s friends and other LGBTQ teens.
Kitchen noted how the Northam administration’s 2021 policy did not require parental notification of changes in pronouns or bathroom use.
“So there are larger issues in getting rid of this,” Kitchen said. “It’ll impact the kids outside of school more than I think people have considered.”
Rivka Vizcardo-Lichter, a high schooler in Fairfax County who identifies as part of the LGBTQIA+ community, said releasing the new guidelines on a Friday afternoon “was a cowardly thing to do.”
Rivka, 15 — lead organizer of Pride Liberation, a student-run group of queer and allied students in Virginia advocating for the rights of LGBTQIA+ students — spoke of students who are outraged and terrified by the proposed guidelines.
“I’ve spoken to literally hundreds of students who are terrified that their protections will be removed and that their peers and themselves will be put at risk for depression, harassment and suicide,” Rivka said Monday.
In less than 24 hours after the draft policies were published, roughly 600 students reached out to Pride Liberation to help with mobilization efforts against the policies, Rivka said.
Matt Callahan, a senior staff attorney with the ACLU of Virginia, said Monday that it will explain its concerns with the proposed guidelines during the upcoming public comment period and if necessary, will “certainly look to legal tools down the line.”