The Washington Lawyers’ Committee for Civil Rights and Urban Affairs opposes the 2022 Model Policies and urges the Virginia Department of Education to reject them. The Committee’s full comments are available here.
In sum, the proposed Virginia Department of Education’s “2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools” (“Model Policies”), if enacted, will create a hostile education environment for transgender and gender non-conforming students in violation of federal and state law. This hostile environment will cause severe harm to an already vulnerable group of students: in 2022 Trevor Project revealed that “nearly 1 in 5 transgender and non-binary youth reported having seriously considered suicide, more than three-quarters of transgender experience symptoms of anxiety and 37 percent have been harmed due to gender identity.” The Trevor Project, National Survey on LGBTQ Youth Mental Health (2022), https://www.thetrevorproject.org/survey-2022/.
The Model Policies treat transgender students differently by preventing transgender students from being recognized by their gender and preferred names and separating students based on biological sex, rather than gender, for a host of school-related activities. The Model Policy will also force schools to out transgender students to their parents and family members, creating distrust between students and trusted adults at school, and potentially severing family relationships and placing young people at risk. Policies such as these, which are classifications based on sex and that target a vulnerable population, are at odds with the Equal Protection Clause of the Constitution and Title IX. As the Fourth Circuit has unequivocally stated, it is part of a consensus of courts holding that “equal protection and Title IX can protect transgender students from . . . policies that prohibit them from affirming their gender.” Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 593 (4th Cir. 2020). If adopted, the Model Policies will require Virginia public schools to discriminate against transgender students, leading to costly litigation and risking federal funding for Virginia’s schools.
Virginia’s Model Policies should create an inclusive environment for transgender students across Virginia and recognize the specific challenges transgender students may face navigating their school environment. Instead, these policies walk back the very protections that the Virginia Department of Education promulgated in 2021, based on widely recognized evidence based best practices, which upheld the rights of transgender students to participate in school programming, access same-gender facilities, and be recognized by their correct names and pronouns.
The Model Policies will create an unconstitutional hostile education environment for transgender students in Virginia public schools and transgender students will face an increased amount of discrimination – schools will deny them educational opportunities, subject them to increased harassment, bullying, and even violence, and violate their privacy as they navigate their gender identity. The Washington Lawyers’ Committee opposes the exclusionary 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools, which provide for neither privacy, dignity, nor respect for transgender students.