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Virginia policy latest attempt to restrict rights of transgender students

The administration of Virginia Gov. Glenn Youngkin (R) is rewriting state rules to block transgender students from accommodations they would have received during the previous Democratic administration. (Al Drago/Bloomberg News)

The administration of Virginia Gov. Glenn Youngkin (R) this weekend sharply restricted the rights of transgender students, sending schools into turmoil and drawing strong denunciations from Democratic legislators and some educators, but earning applause from Republicans and parents’ rights advocates.

The guidelines, released Friday, place Virginia at the heart of a national battle over how transgender children should be treated at school, as well as if and how much parents should be told about gender transitions that begin there.

The new “model policies” — a version of which must be adopted by all of the state’s 133 school districts next month — will require transgender students to access school facilities and programs matching the sex they were assigned at birth. The policies also make it onerous for students to change their name and gender at school.

The guidelines are the latest example of Youngkin’s top-down approach to governance, and are likely to draw swift challenges in court, experts said. At least one Democrat is already alleging the guidelines violate the Virginia Human Rights Act, which protects individuals in public settings, including schools, from discrimination on the basis of gender identity.

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The new policy “delivers on the governor’s commitment to preserving parental rights and upholding the dignity and respect of all public school students,” Youngkin spokeswoman Macaulay Porter wrote in a statement. “It is not under a school’s or the government’s purview to impose a set of particular ideological beliefs on all students.”

Under the policy, the Virginia Department of Education is mandating that families submit legal documentation to earn their children the right to change their name and gender on official school records. The policies say teachers and other school personnel can refer to a student by a different name or pronoun only if parents request the switch in writing.

But the policies defer to parents only so far. Even if parents make that written request, the guidelines say teachers cannot be compelled to refer to transgender students by their name and gender if it goes against educators’ “constitutionally protected” free speech rights.

And the guidelines say schools cannot “encourage or instruct teachers to conceal material information about a student from the student’s parent, including information related to gender” — raising the possibility that teachers could be forced to out transgender students to their parents.

The guidelines in Virginia come as anti-transgender bills crop up across the country. A Washington Post analysis found that at least 300 pieces of legislation have been proposed, seeking to bar transgender athletes from school sports, limit teachers’ ability to offer lessons on gender identity and sexuality, pull books featuring LGBTQ characters from school library shelves and criminalize the provision of hormone therapy to minors. On July 1 alone, 10 anti-LGBTQ laws went into effect, all targeting schools.

Until now, though, Virginia schools had been comparatively more accepting of transgender students, owing to policies enacted by Youngkin’s predecessor, Gov. Ralph Northam (D), that took effect in 2021. Transgender students were granted access to restrooms, locker rooms and changing facilities that matched their gender identity. The guidelines also stipulated that schools let transgender students participate in school programs matching their gender identity and required that school districts and teachers accept and use students’ gender pronoun and identity, without question. They did not address transgender athletes, leaving those decisions to the Virginia High School League.

But the Youngkin administration’s guidelines reverse and cancel those rules, declaring that they “have no further force and effect.” Northam’s policies sought “cultural and social transformation in schools” and “disregarded the rights of parents,” the guidelines state.

Anthony Belotti, a 22-year-old college student who grew up as nonbinary, trans masculine and queer in Stafford County schools, said the reversal is especially cruel for transgender students who were becoming accustomed to the newfound protections. Belotti recalled how he was barred from using the men’s restroom in high school, instead waiting to do so at home. Ultimately, it caused him to contract chronic urinary tract and kidney infections because he went too long without relieving himself.

Research suggests there are about 4,000 transgender teens in Virginia, and that this population is far more likely to attempt suicide.

“This is going to mean less protections from bullying,” Belotti said. “It’s going to be especially devastating for students who know what it is like to have access to support and respect, and now have that taken away from them.”

But some parents hailed Friday’s guidelines as a major victory. Ian Prior, a Loudoun County parent, former Trump administration official and founder of education advocacy group Fight For Schools, said the guidelines restore parental rights over the education of their children.

“Governor Youngkin promised to put parents back in charge of the care, upbringing, and education of their children,” Prior said. “He delivered — big time.”

School districts in Virginia must adopt the guidelines, or “policies that are more comprehensive,” following a 30-day comment period that begins on Sept. 26, the state Department of Education said. The Virginia Board of Education will not have to vote to adopt the policies — that power will rest with Superintendent of Public Instruction Jillian Balow, said Charles Pyle, a spokesman for the department.

“Once the public comment period closes, the department will review the comments. The guidance will become effective following approval of a final version” by Balow, Pyle said in a statement Saturday.

It is unlikely, however, that the policies will take effect without a fight. Law professors said that the way the governor debuted his administration’s guidelines render them vulnerable to legal challenges for two primary reasons.

The first centers on the main justification that Youngkin’s administration used for the guidelines: a 2020 law, sponsored by Democratic legislators but passed on a bipartisan basis, that required the Department of Education to develop model policies — and later required all school districts to adopt versions of them — for the protection of transgender students. The law does not define the nature of these policies but says they should “address common issues regarding transgender students in accordance with evidence-based best practices” and that they should prevent bullying and harassment of transgender students. The Northam administration’s 2021 guidelines were issued in accordance with this law.

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But the Youngkin administration also claims its guidelines are being issued “as required” under the same 2020 legislation.

Craig Konnoth, a University of Virginia law professor, said the Youngkin administration’s guidance does not match the intent of the 2020 law — meaning it could be challenged as illegitimate.

“The new policies simply ignore Virginia statute. The statute was enacted to protect transgender students,” Konnoth said. “These guidelines prioritize red tape and teachers’ beliefs over student well-being.”

Virginia Sen. Jennifer B. Boysko (D-Fairfax) and Del. Marcus B. Simon (D-Fairfax), who introduced the 2020 legislation in the Senate and House of Delegates, respectively, said Saturday that they do not believe the guidelines accomplish what their law was supposed to do.

“The law requires the policies to be based on evidence and best practices and should have the best interest of all students — that includes trans students — in mind,” Simon said. “These policies clearly don’t meet that standard and I don’t think are consistent with the bill I introduced.”

The second issue involves procedure, said Carl Tobias, a University of Richmond law professor.

“If you don’t like it as governor, and your administration doesn’t like it, then you needed to go to the General Assembly and amend that statue,” Tobias said. “Rather than backdoor it with an executive branch action … I expect there would be legal challenges to this.”

Asked about the possible legal vulnerability of the guidelines, Porter said in a statement that “the model policy is crafted to ensure local school boards who adopt it fully comply with all applicable federal and state laws.”

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There is also some confusion over how much power the Youngkin administration has to enforce one aspect of the guidelines: the stipulation that “students shall use bathrooms that correspond to his or her sex.” The guidelines state this must hold true “except to the extent that federal law otherwise requires,” then reference a 2020 federal appeals court ruling that held a Virginia school board had discriminated on the basis of sex and violated the 14th Amendment when it prohibited a transgender student from using the bathroom aligned with his gender identity.

Konnoth said this exception may render the Youngkin administration’s bathroom policy meaningless — and at the least is “unclear and [will] invite controversy and litigation.

Youngkin spokeswoman Porter did not respond to a question about the issue.

In the meantime, Virginia is fracturing.

Boysko said she is talking with colleagues about how to strike back for transgender student rights.

On the opposite side of the aisle, Del. Glenn Davis (R-Virginia Beach) wrote in a statement that he believes the Youngkin administration’s policies will at once “provide a safe environment for all students ... and respect the fundamental rights of parents to make decisions regarding the education and care of their children.”

Fairfax County parent Stacy Langton said she is thrilled by the guidelines, especially the provisions suggesting that parents be kept abreast of information about children’s gender identity.

“There should be complete transparency and access to whatever is going on with your student at the public school,” she said.

And Rivka Vizcardo-Lichter, a 15-year-old queer teen in Fairfax County who heads a student LGBTQ rights group, has been busy fielding messages from peers ever since the guidelines debuted.

“In less than 12 hours, we’ve had well over 200 students reach out in some capacity to express outrage over these regulations,” she said.

Many, she said, are terrified.

Laura Vozzella contributed to this report.

This story has been updated with additional comments from the administration of Gov. Glenn Youngkin, legal analysis of the new guidelines and reaction from students, parents and Virginia legislators.

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