Wednesday, October 26, 2022

Opposition to Governor Youngkin"s Misguided "Model" Policies for Treatment of Transgender Students

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.