In 2021, Gov. Ralph Northam’s Department of Education released its Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, which, according to state law, required local school districts to adopt policies consistent with the state models.
The 2021 model policies required students and teachers to refer to other students by their chosen pronouns. It also required schools to allow “gender-expansive, non-binary, and gender nonconforming” students to use restrooms and locker rooms that did not match their biological sex.
And while the model policies did not explicitly allow schools to keep information about a student’s “gender identity” secret from his or her parents, school districts in Virginia slipped this disturbing practice into regulations or staff training programs.
Last week, Gov. Glenn Youngkin’s Department of Education released revisions to the model policies. Where Northam’s policies ignored common sense and the Constitution to create super rights in students who were “gender-expansive, non-binary, and gender nonconforming,” the new ones mark a return to Virginia’s schools being a place of academics and respect rather than a laboratory for social experiments that endanger the mental and physical well-being of children.
Under the new policies, schools may not compel teachers and students to refer to other students in a manner that would violate their First Amendment rights. Additionally, students cannot be required to participate in counseling if the parents object. Finally, students are to use locker rooms and bathrooms that correspond with their biological sex, except to the extent that federal law requires otherwise (more on that shortly).
Some school districts have implied that they may not comply with these new model policies as Virginia law requires. School board members in Fairfax County have signaled that they will not follow the law, and the superintendents of Alexandria and Arlington have flat out stated that they will not implement them.
Incoming Loudoun County Superintendent Aaron Spence, however, recently told the media that he would make sure the division aligns with the new set of model policies.
Beyond commonsense reasons for keeping bathrooms and locker rooms segregated by biological sex, informing parents of mental health issues involving their children, and requiring parental involvement for a student to choose a different identity while at school, school districts in Virginia are risking constitutional lawsuits by failing to adopt these policies.
For example, school districts that want to compel the use of the preferred pronouns of others might want to closely read the Supreme Court’s recent decision in 303 Creative LLC v. Elenis, which held that the government could not compel a website designer to create a website for a same-sex wedding. In its holding, the court said: “the government may not compel a person to speak its own preferred message.”
GOV. YOUNGKIN SAYS DIVERSITY, EQUITY AND INCLUSION HAS ‘GONE OFF THE RAILS’
If school districts want to continue to keep secrets from parents in the guise of “inclusion of transgender students,” I would suggest that they listen carefully to the oral arguments at the Fourth Circuit Court of Appeals in John and Jane Parents 1 v. Montgomery County Board of Education.
While a decision on whether these policies violate parents’ 14th Amendment due process rights is still pending, the judges seemed skeptical about their constitutionality.
Concerning bathrooms and locker rooms, school districts have relied on the Fourth Circuit’s ruling in Grimm v. Gloucester County School Board. That decision bent over backward to establish rights not found in the Constitution or Title IX and is contrary to recent decisions in the Sixth and Eleventh Circuits.
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Nevertheless, even that ruling did not go so far as to extend to locker rooms. Further, the court noted that Grimm had been medically diagnosed with gender dysphoria, had official records that reflected his name change, and a mother that was fully involved in the plan to let Grimm use a restroom of a different sex.
Last year in Kincaid v. Williams, the Fourth Circuit held that gender dysphoria was a disability under ADA. As questionable as that conclusion may be, a sentiment that Justices Samuel Alito and Clarence Thomas also hold, at least the court distinguished those that suffered from “gender dysphoria” from those with “gender identity issues,” holding that the latter was not a quasi-suspect class for the purposes of the equal protection clause.
Reading those two cases together, it should be clear that, even in the Fourth Circuit, schools that open up female bathrooms to biological males that are merely “gender expansive” or exploring their “gender identity,” such as Fairfax and Loudoun County Public Schools, respectively, are favoring students who are not a quasi-suspect class over girls, who ARE a quasi-suspect class.
Such vague and overbroad policies open schools to equal protection and Title IX claims brought on behalf of female students.
It’s well past time for Virginia’s schools to get out of the business of managing the morals, values, and mental and physical well-being of its students in violation of the Constitution, and time for them to adopt these model policies and focus on preparing students for academic success. If they don’t, they’ll continue to find themselves in court, perhaps even in the Supreme Court.
