McLean High School walkout in protest of Youngkin policies, September 27, 2022. (Courtesy of Z2B Photography)
Last week, Spotsylvania County Public Schools became Virginia’s first school district to adopt controversial state-crafted model policies for the treatment of transgender and non-binary students.
The 4-2-1 decision of the Spotsylvania School Board, made during a chaotic Aug. 14 meeting, was followed by Roanoke County’s adoption of the policies in a similarly heated environment that saw the arrest of one parent for disorderly conduct. But elsewhere in Virginia, other school divisions, including Arlington, Fairfax and Richmond, are refusing to even consider the new policies, first introduced by Gov. Glenn Youngkin’s administration in September 2022 and finalized this July.
“Calling a student by their chosen name seems like the very least we could do for our kids,” Richmond Public Schools superintendent Jason Kamras said. “We remain committed to our current policies, which were based on the policies put out by [former] Governor [Ralph] Northam.”
These polarized responses reflect just how divided certain Virginia communities are on the issue of how schools should treat transgender students. And, as more districts consider the model policies, questions remain about how much power the state has to enforce them.
Despite hard stances taken by a handful of districts, most have not taken a position at all. According to the ACLU of Virginia, that’s because they don’t have to.
“The law that tasks the Virginia Department of Education with creating these model policies [regarding] the treatment of trans students … that code provision does not have an explicitly articulated enforcement mechanism for districts who do not adopt model policies,” said attorney Wyatt Rolla.
The “Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools” are a tweaking of a 2022 draft, a version of which was only adopted by Pittsylvania County Schools, according to Rolla. The Youngkin policies reversed policies put in place by the Northam administration that directed schools to use the names and pronouns identified by students as corresponding with their gender identity and allow students to use bathrooms and locker rooms aligned with that identity. The Youngkin version, by contrast, requires legal documentation for a student to use different names and pronouns than what appears in their official record and directs students to use bathrooms and locker rooms that align with their biological sex.
Asked how the Youngkin administration’s policies would be enforced, a VDOE spokesperson, who did not respond to requests to identify themselves, said the code requires the department to “develop and make available to each school board model policies” and “each school board shall adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education.”
“The Department has fulfilled its responsibility to develop the policies, and school boards are expected to follow the law,” the email said.
Likewise, Victoria LaCivita, a spokesperson for Attorney General Jason Miyares, said the attorney general “expects school boards to follow the law.” Youngkin spokeswoman Macaulay Porter provided a similar statement.
“The law requires the Virginia Department of Education to provide model policies and requires school boards to adopt policies consistent with those provided by the Department,” the statement said. “The Department has fulfilled its responsibility to develop the model policies, school boards are expected to follow the law.”
At an Aug. 8 “Parents Matter” roundtable in Henrico County, Youngkin told reporters that school districts “don’t have a choice” about the new policies.
“It is as clear as day in the code, and candidly if that is the example that school boards want to set, where they get to run right in the face of clear language, then I ask a big question about whether those school boards are the school boards that are best representing families in Virginia,” he said.
The Department has fulfilled its responsibility to develop the policies, and school boards are expected to follow the law.
– Virginia Department of Education
For districts that do adopt the new model approach, Rolla said it is possible the policies will come into conflict with Title IX, the federal law that prohibits sex-based discrimination in schools, as well as the Virginia Human Rights Act, which was updated by the Democratic-controlled General Assembly in 2020 to include sexual orientation and gender identity as prohibited categories of various kinds of discrimination.
“These school districts could absolutely have issues with the [U.S.] Department of Education’s Office of Civil Rights,” Rolla said.
At the Aug. 14 Spotsylvania School Board meeting, member Lorita Daniels, who voted against the model policies, said she wanted “to make sure that we are clear what we’re doing, because if we implement something that goes against Title IX, [that] is a liability.”
Board Chair Lisa Phelps rejected that concern.
“The bottom line, this vote is about parents’ rights,” said Phelps. “I have children, I birth them, and that’s how simple I’m going to keep it.”
Nicole Cole, the other member who voted against the model policies, said the threat of lawsuits from parents who are advocating for the Youngkin-era model policies was the driving force behind their adoption in their district, and she was not unsure about whether the board would be able to legally protect itself.
Spotsylvania County Public Schools did not grant an interview with Superintendent Mark Taylor or attorney Whitson Robinson. An unidentified school spokesperson did say that plans to implement the policies are being developed.
“Teachers, school counselors and social workers, everyone who has been trusted [by] these kids for so long, it’s going to break their confidence in adults,” said board member Dawn Shelley, who abstained from voting on the proposal. “And I really don’t know what to do about it.”
As more districts like Virginia Beach City Public Schools consider the model policies, Ranger Balleisen, an organizer with Pride Liberation Project, a group that led school walkouts last year in protest of the Youngkin administration’s draft model policies, said his organization is currently deliberating its next steps.
“We’re not going to be ignored; we are going to be heard about these policies,” Balleisen said. “If we have to keep organizing around them, then we will.”
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