Youngkin, attorney general expect schools to follow transgender policies
Enforcement mechanism unclear as resistance to new transgender policies grows
High school students across Virginia including those at McLean High School walked out in protest of the governor’s revised transgender student policies on Sept. 27, 2022. Pictured is a student holding a poster that states, “The model policy is a modern travesty.” (Nathaniel Cline/Virginia Mercury)
As opposition to Gov. Glenn Youngkin’s new policies on treatment of transgender students grows, Virginia still lacks an enforcement plan to have school divisions adopt them.
Under new guidance published last month, schools are required to inform a student’s parent or guardian whether a student wants to change their name, nickname and/or pronouns from how they are listed in their records, among other policy changes.
The Republican Youngkin said he expects schools to follow the law when it comes to the new guidance.
“It’s the law and so I don’t really have a lot of patience for folks that see a law and don’t comply with it,” said Youngkin on Sept. 20.
“Protecting parents’ fundamental rights to make decisions for their children is in the Virginia code, and I fully expect that each one of the school divisions should comply,” he said.
Asked about how the Office of the Attorney General plans to enforce the new guidance, a spokesperson said only that the attorney general expects schools to comply with the law.
Not all school divisions on board with governor’s guidance
Contrary to the administration’s expectations that school divisions will adopt the new policies, which differ from those instituted during Democratic Gov. Ralph Northam’s term, some school districts are already showing reluctance to adopt them.
Richmond City School Board voted 8-1 to pass a resolution on Monday rejecting the governor’s model policies and “affirm(ing) its commitment to providing protections for all students regardless of sexual orientation, gender identity or gender expression.”
Board member Jonathan Young was the lone member to oppose the resolution.
“I am sorry that some persons don’t want parents to have any say pertaining to who can share a locker room, a shower room or a bedroom with their children,” he said.
In Northern Virginia, Alexandria City school officials said in a Sept. 19 letter to community members that they will continue to “implement and develop affirming policies” for students as they wait for a public comment period on the new policies to end later this month.
The city’s mayor and council members subsequently submitted a letter to the Department of Education on Sept. 28 that said they would support the city schools’ decision to “continue the previously adopted policy and practice respecting individual rights and protecting students from discrimination due to gender expression, gender identity, sexual harassment, and transgender status.
The council said in its letter that the proposed policies remove protections for transgender and nonbinary students in Virginia’s public schools, and stigmatize and undermine their dignity.
School divisions’ unwillingness to buck state guidance on transgender students isn’t new.
A state law passed in 2020 directed school boards to adopt policies consistent with guidance issued by the Northam-era Department of Education that was intended to provide protections for transgender students.
But most school boards opposed the 2021 model policies and instead opted to follow guidance from the Virginia School Boards Association that contended existing policies met the law’s requirements.
Only 10% of schools adopted the previous policies, according to Virginia Equality.
Virginia school boards are required by law to “see that the school laws are properly explained, enforced and observed.”
Additionally, state law notes that parents who are aggrieved by an action of a school board may petition the circuit court to review the action.
In 2014, after transgender student Gavin Grimm was barred from using the boys’ bathroom by the Gloucester County School Board, he sued the school division. He later received $1.3 million after four years of litigation.
Del. Danica Roem, D-Prince William, said the governor’s action should be contested in court under the Virginia Human Rights Act.
New policies require parental involvement
Youngkin’s new policies note that “schools should attempt to accommodate students with distinctive needs, including any student with a persistent and sincere belief that his or her gender differs from his or her sex.”
But they also require parental approval for any changes to students’ “names, nicknames, and/or pronouns.” Further, the new policies direct schools to keep parents “informed about their children’s well-being,” specify that student participation in activities and athletics shall be based on sex and state that “students shall use bathrooms that correspond to his or her sex, except to the extent that federal law otherwise requires.”
The policy document argues that the First Amendment forbids “government actors to require individuals to adhere to or adopt any particular ideological beliefs” and that “practices such as compelling others to use preferred pronouns is premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex.”
On Sept. 26, a five-member school board in Rockingham County failed to adopt a similar policy that would have required that a parent or guardian be notified and provide consent if a student wished to be called by any other name not reflected in their school record. The vote on the measure, which had been put forward before the Youngkin administration announced its new policies, failed 1-3, with one member absent.
Last week, thousands of students walked out of their respective schools in protest of the policies revised by the Youngkin administration.
Students called on the Department of Education to revoke the draft guidelines and for school boards to “protect all students by rejecting the VDOE’s guidelines,” according to Pride Liberation Project, an advocacy group for LGBTQIA+ rights.
Macaulay Porter, a spokeswoman for the governor, said in a statement that the guidelines make it clear that when parents are part of the process, schools will accommodate the requests of children and their families.
“Parents should be a part of their children’s lives, and it’s apparent through the public protests and on-camera interviews that those objecting to the guidance already have their parents as part of that conversation,” Porter said.
She also pointed out that the policy document states that students should be treated with compassion and schools should be free from bullying and harassment.
However, Sen. Jennifer Boysko, D-Fairfax, who along with Del. Marcus Simon, D-Fairfax, carried the 2020 legislation directing school divisions to comply with VDOE guidance on transgender students, said the changes proposed by the governor will put Virginia’s vulnerable transgender and nonbinary students at further risk for bullying and harassment.
She told the Mercury that the Northam-era policies were developed to support Virginia’s “most vulnerable students,” those who do not have supportive families and face decreased mental health and financial and housing insecurity. Now she’s concerned about the changes.
“Despite Governor Youngkin’s political gamesmanship in his quest to compete with the cruel policies of [Florida Gov.] Ron DeSantis and to divert attention from the issues at hand around abortion, we will continue to work collaboratively with our families and schools to assure that all students are safe and feel welcomed in their schools,” Boysko said.
Public comment period ends October 26
A 30-day public comment period on the policies is scheduled to end on Oct. 26. The new policies will then go into effect.
In less than a day after the public comment period opened, the number of responses had eclipsed the 9,086 total number of comments submitted on the Northam-era guidance.
Virginia had collected over 54,000 as of Sunday.
This story has been updated to add details about the Richmond School Board’s Monday-night vote.
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