The laws on the books haven’t changed. Laws protecting transgender students, passed by the General Assembly in 2020 and signed into law by former Governor Ralph Northam, remain in force here in the Commonwealth of Virginia. And yet, late Friday afternoon, the Virginia Department of Education (VDOE) announced that it would overturn guidelines instructing Virginia schools on methods of dealing with transgender students, in favor of new, more restrictive guidelines that have appeared out of nowhere.
Changes the new guidelines make to previous, more inclusive policies set down in the Model Policy released by the VDOE in 2021 include requirements that “school personnel shall keep parents fully informed about all matters … related to their child’s health, and social and psychological development,” and that schools do not “encourage or instruct teachers to conceal material information about a student from the student’s parent, including information related to gender.” While it doesn’t explicitly state as much, this is a requirement forcing teachers to out students who express inclinations toward trans, non-binary, and gender-non-conforming identities to their parents, regardless of what sort of danger that might put those young people in.
The new guidelines also say that school personnel can’t be required to use students’ preferred pronouns, hiding behind the first amendment’s guarantees of religious freedom and freedom of speech as justifications. It also editorializes about the validity of trans identities, reading, “Practices such as compelling others to use preferred pronouns is [sic] premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex. Many Virginians reject this belief.”
This particular defense of referring to students in manners they don’t wish to be referred to with respect to chosen names and pronouns seems to build on a legal decision in the case of Tanner Cross, a Loudoun County gym teacher who responded to debates around Loudoun’s potential adoption of the Northam-era model policy by publicly declaring, at a school board meeting, that he would refuse to use correct pronouns for transgender students. The school system then suspended Cross, based on the fact that the stated intent of the Northam-era model policy was “prevention of and response to bullying and harassment,” and that the policy included this sentence: “For transgender students, acts of verbal harassment may include the intentional and persistent use of names and pronouns not consistent with their identity.”
Despite the fact that Cross’s plans directly violated the policy his school system was required by law to adopt, he sued the school for suspending him. The Virginia Supreme Court eventually ruled in Cross’s favor, though not by ruling that he was within his rights under the first amendment to misgender students. Instead, the Supreme Court argued that declaring his intent to do it wasn’t the same as doing it, and so he shouldn’t have been suspended.
But would the Virginia Supreme Court ultimately take the side of Cross, or another teacher, if they were to directly misgender a student? Would they buy the argument that the first amendment supersedes a student’s right to be protected from bullying and harassment by their own teachers?
The new Youngkin-era model policy seems to believe they would, and to use that rationale as its defense for allowing teachers who feel like disregarding a trans student’s preferred name and pronouns to do so without fear of consequences. In fact, the new model policy includes all sorts of workarounds allowing school systems across the state to duck out of any accusations of bullying or harassment by saying that the student involved doesn’t REALLY count as transgender.
Examples of workarounds include the following direct quotes (in bold) from the new model policy:
“The word “sex” means biological sex.” As we know, “biological sex” is the term currently in vogue on the political right to refer to “sex assigned at birth.”
“The phrase “transgender student” shall mean a public school student whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs from his or her sex, that their child be identified while at school.” If a student’s parents haven’t completed the process of submitting and receiving approval for this particular written request, that student isn’t really trans, and can’t avail themselves of any protections that may or may not be included in the remainder of this model policy. And don’t even ask what happens if the student’s parents don’t approve of and support their gender identity.
“[School Division] personnel shall refer to each student using only (i) the name that appears in the student’s official record, or (ii) if the student prefers, using any nickname commonly associated with the name that appears in the student’s official record.” AND: “[School Division] shall change the legal name or sex in a student or former student’s official record only if a parent or eligible student submits a legal document, such as a birth certificate, state- or federal-issued identification, passport, or court order substantiating the student or former student’s change of legal name or sex.” Want to be called by your new chosen name? You better have changed it legally, or school staff isn’t allowed to call you by it.
“[School Division] personnel shall refer to each student using only the pronouns appropriate to the sex appearing in the student’s official record – that is, male pronouns for a student whose legal sex is male, and female pronouns for a student whose legal sex is female.” In other words, not only is misgendering allowed, it’s technically required.
I could go on, but really, why bother? Let’s instead move to the rationale the Youngkin administration came up with for this abrupt reversal. According to the new model policy, “The 2021 Model Policies promoted a specific viewpoint aimed at achieving cultural and social transformation in schools. The 2021 Model Policies also disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students, including transgender students.”
Macaulay Porter, a Youngkin spokesman, explained that the new policies were intended to privilege the rights of parents above all others. “It is not under a school’s or the government’s purview to impose a set of particular ideological beliefs on all students,” Porter said, according to the New York Times. “Key decisions rest, first and foremost, with the parents.”
With one month allowed for public comment before the new policy goes into effect, dissenting voices have arisen from a variety of places. On Twitter, Richmond City Public Schools Superintendent Jason Kamras said, “This is unacceptable. Public schools should be welcoming and inclusive, not exclusionary. The very least we can give our students is dignity and respect. This action takes it away.”
Elsewhere on Twitter, Delegate Mike Mullin, who represents Newport News, stated, “[Gov. Youngkin]’s new model policy calls for the misgendering and outing of children in schools where they’re supposed to be safe. Absolutely shameful.”
The ACLU of Virginia also tweeted their disapproval, stating, “We are appalled by the Youngkin administration’s overhaul of key protections for transgender students in public schools. LGBTQ+ students already experience much higher self-harm & suicide rates because of the discrimination they face. This will only make matters worse.”
And Delegate Danica Roem made clear that, if the Youngkin administration proceeds with this course of action, lawsuits will be coming. “The law of Virginia has been settled on this since 2020, [Governor Youngkin],” she stated on Twitter. “You can’t use executive action to overturn § 2.2-3900, the Virginia Human Rights Act. If you want a debate, then we’ll see you at a microphone. If you want to break the law, then we’ll see you in court.”
The public comment period on this new policy begins on Monday, September 26, and will run for one month. It is our understanding that the comment form will eventually be made available here. Rest assured that GayRVA will keep you posted on any developments in this story.