These are the comments that I submitted to the Department of Education in opposition to the dangerously flawed and harmful Model Policies proposed by Governor Youngkin and his allies:
I write to state my
opposition to implementation and enforcement of the misguided Virginia Department
of Education’s (VDOE) 2022 Model Policies for the Treatment of Transgender Students in
Public Elementary and Secondary Schools.
I personally subscribe
to the comments opposing these harmful proposals submitted by Equality Virginia
and by the ACLU of Virginia. The 2022 Model Policies are not evidence-based as
required by law, and it is clear that their implementation in Virginia schools
will cause harm to transgender students who are already vulnerable to bullying
and abuse. Moreover, the provisions in the guidelines that will require schools
to “out” nonbinary and trans students to their parents will exacerbate the disproportionate
representation of these children among homeless youth and among those caught up in the
juvenile criminal legal system in significant part because of family
abandonment.
There is no serious
question among reasonable attorneys that these guidelines, if implemented by any
school division, would place that school division in jeopardy of a successful
lawsuit brought to enforce Title IX of the Education Amendments of 1972, which
the 4th Circuit has recognized prohibits discrimination based on
gender identity in federally funded school programs, and to protect trans and
nonbinary students from discrimination in violation of the equal protection
clause of the U.S. Constitution.
In addition, there
is a significant legal question whether the legislature and the Department of
Education have the authority under the Virginia Constitution to dictate how
local school divisions operate on a day-to-day basis, including how they treat
students in their classrooms. The Virginia Constitution approved by the voters
in November 1970, which became effective July 1, 1971, reflects a delicate
balance unique to Virginia in terms of how our public education system is to be
administered.
Having weathered
massive resistance in which local school divisions shut down public schools to
avoid integration, Virginians were determined not to allow any students to be
deprived of the right to a free, public education again. The Constitution Virginia
voters approved in 1970 stated unequivocally that all children have a right to
a free public education of high quality.
The Constitution
then went on to apportion the power and responsibility to deliver that
education among state and local actors: the state Board of Education (given authority
to prescribe “standards of quality” and charged with “general supervision of
the public school system” as a whole), the legislature (charged with funding the
standards prescribed by the State Board), local governments (charged with
funding their portion of the costs), and local school boards (charged with the
day to day supervision of the schools in their jurisdiction). The Constitution
also provides for the appointment of a state superintendent by the Governor but
specifies no role for a “Department of Education” or the Governor.
The Virginia Code
provides: “There shall be a system of free public
elementary and secondary schools established and maintained as provided in this
title and administered by the Board of Education, the Superintendent of Public
Instruction, division superintendents and school boards.” Again, no
mention of the Education Department or the Governor. Moreover, the Virginia
Code only invests the Board of Education with the power to adopt regulations to
fulfill its supervisory responsibilities.
While the Virginia General Assembly did pass a law requiring the
Department of Education to develop model policies regarding the treatment of
transgender students, such policies are not regulations and do not have the
force of law. Moreover, one can legitimately ask whether the General Assembly
had the authority under the carefully balanced constitutional scheme to dictate
any requirements for the supervision of the day-to-day operation of local schools.
If,
however, the legislature’s instruction does have the force of law, it remains
clear that the 2022 Model Policies are in violation of that law in that they are
not a reflection of “evidence-based, best practices,” but rather directly
contradict them.
A final note. Virginia children must present a birth certificate
to enroll in school. Virginia allows transgender people to amend their birth certificate
to reflect their true gender identity. When the birth certificate changes, it states the person’s legal
sex. Nonetheless, the 2022 Model Guidelines purport to require a school
division to take certain actions based on a student’s “biological sex” rather
than their established legal sex. What right does any school division have to
look behind the birth certificate presented by the student? The question is how will they determine “biological sex” as required by the 2022 Model Policies if they
are not going to rely on a student's birth certificate? Are they going to subject every
child to a physical examination?
For all these reasons, I strongly oppose implementation and
enforcement of the 2022 Model Guidelines and ask that the 2021 Model Guidelines
which were evidence-based and reflected best practices be recommended for
adoption by local school divisions instead.
