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 4^th 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.

 

Adoption Discrimination--Roanoke Times Raises Important Questions about Broader Implications of Recent State Action

Interesting that none of the stories about the State Board of Social Services' action on the adoption rules focused on the larger questions raised by the decision to strip out of the nondiscrimination rules, not only protections against discrimination based on sexual orientation but also stripped protections against discrimination based on gender, religion, disability, age, family status and political beliefs.

Shouldn't all of us be talking about the implications of policies of some faith based adoption agencies who said during the public comment period on the rules and in written comments filed with the agency that they refuse (or want to be able to refuse) to place children with families of other faiths?

Is it an act of charity or an act of institutional self-preservation or proselytization for a faith-based adoption agency to require a pledge of faith to use their adoption services?

Is this an act in the best interests of the child they are placing or of the placing agency?

And, since the courts must approve every adoption, isn’t their discriminatory policy actually being effected by the state, rather than by a private party?

The Roanoke Times has begun the debate.

I hope it continues.

ADOPTION DISCRIMINATION
Gays were the focus of debate, but proposed adoption regulations went much further.

Roanoke Times Editorial, April 23, 2011

On Wednesday, the Virginia Board of Social Services, at the urging of Gov. Bob McDonnell, chose not to grant equality to unmarried couples and gay Virginians in the adoption process. Private adoption agencies may continue to discriminate against them. Loving homes will remain largely unavailable for kids in search of a family.

The debate leading up to the decision framed things primarily as a gay rights issue, but there was much more to it. The proposed regulations also would have made gender, age, religion, political beliefs, disability and family status non-issues in adoption.

The opposition primarily came from religious-based adoption agencies whose faith tells them gays are unfit parents.

Current regulations say only race, color or national origin may not be considered by agencies, no matter their religious teachings. Those rules exist for the simple reason that race should have nothing to do with adoption, even if in some twisted way one claims that religion demands it. A black parent should be able to adopt a white child from any agency; a white parent, an Asian child; and so on.

An adoption agency's faith tradition might also dictate that people of another religion are unfit parents. Maybe Democrats, too, or Republicans. People who vote for pro-choice candidates. People in wheelchairs. All remain viable, albeit distasteful, reasons an adoption agency might cite to reject parents. Yet because those groups' interests were caught up in a broader gay-rights fight, they too will continue to be potential objects of discrimination.

When it comes to finding good families for children, sexual orientation, faith, politics and all the rest have no place in the discussion. The surprising thing was not that the governor chose not to extend equal rights to gay people, but that he did not get behind the rest of the changes.

The "Natural Consequences" of Hate

Christina got this exactly right. Once you let "hate" define your views (even if it is just to "hate the sin"), you can't control how it eats away at your soul and undermines your humanity. (See, Keeping it Civil re: hate as the language of politics).

Bob is a friend whose inability to accept responsibility for the natural consequences of his own actions and choices erodes his credibility as a messenger to others on the consequences of theirs.


EMBATTLED DELEGATE FACES CONSEQUENCES OF RANT ON ABORTION

By Christina Nuckols

The Virginian-Pilot Column

DEL. BOB Marshall looked haggard and bewildered as he searched his cluttered desk Wednesday for a way to explain and soften the hurtful words he had spoken a few days earlier.

“The Bible regards barrenness as a curse, not children,” he muttered as he leafed through the Encyclopedia of Judaism, then reached for a medical journal. “I should have used the term 'physical complications.’ ”

The Prince William County Republican insists his comments at a Feb. 18 press conference were taken out of context, but that rant against Planned Parenthood isn’t easily explained away.

“The number of children who are born subsequent to a first abortion who have handicaps has increased dramatically. Why? Because when you abort the first-born of any, nature takes its vengeance on the subsequent children,” he said in a videotaped speech. “In the Old Testament, the first-born of every being, animal and man, was dedicated to the Lord. There’s a special punishment, Christians would suggest, and with (sic) the knowledge that they have from faith has been verified by a study from the Virginia Commonwealth University. First abortions of the first pregnancy are much more damaging to a woman than latter abortions.”

Advocates for the disabled were enraged when they learned of the remarks, but there was a delayed reaction. Early media reports didn’t include the quote, in part because Marshall was sandwiched between other speakers accusing Planned Parenthood of racial genocide. But the slow response may also stem from Marshall’s split personality. Journalists and fellow legislators struggle to reconcile the rumpled, self-deprecating fellow most genuinely like with the steely crusader who too often wages misplaced attacks on the innocent.

When I first met Marshall in 1998, he handed me a computer disc filled with pornography. It was a startling introduction, but 12 years later he can walk up to me and start discussing the evils of bestiality without inspiring a blush, much less a call to 911. I’ve grown accustomed to his campaigns against abortion and gay rights, but also his work for autistic children. I know all of his tales about tormenting nuns at Catholic school, taking judo lessons from a bodyguard of Chiang Kai-shek and meeting Harry Truman.

His kids have grown from teenagers to adults. Except Chris, who died at age 19 when the pickup truck he was a passenger in struck a tractor-trailer one night in 2001. Since then, I’ve rarely seen Marshall without a camera around his neck.

“I just wanted people to have memories,” Marshall said. “I cried for nine months after his death. A friend of mine who’s a photographer said I needed therapy.”

If I sometimes feel a little protective toward him, I’m also troubled by that other, darker side of Marshall, the one he presents to the rest of the world. My own religious beliefs make it easy to understand his opposition to abortion, but I cannot condone his harshness toward the women who have made that difficult choice.

“I feel sorry for these women,” he said. “I’m the occasion of an unresolved conflict for some women who’ve had an abortion. It’s still bothering them.”

His words are far from convincing, and it’s even harder to explain his attitudes toward gay people. Some of the unborn whose lives he says he is fighting to save would certainly grow up to be gay and therefore second-class Virginians under the laws he has written.

Marshall is consumed by a moral code that blinds him to the consequences of his own actions and words. “Hate the sin, love the sinner” is a nice-sounding mantra that is rarely achieved. Hate isn’t something so easily contained and channeled. It’s a corrosive force that eats away at both the guilty and the innocent, even disabled children and their parents.

I still believe there’s a part of Marshall who understands that and would do anything to retract his malevolent words. But he won’t find it flipping through his theology and medical books.

House of Delegates Refuses to Protect State Workers From Being Fired Because They Are Gay

Today, the Virginia House of Delegates refused even to vote on a proposal to protect state workers from being fired for being gay, or black, or Latino, or disabled, or a veteran, or a person with genetic markers for breast cancer, or old ... .

Delegate Adam Ebbin proposed an amendment to the budget (which will require lay offs and job cuts across the state workforce) that said:

No employee of the Commonwealth, including employees of public institutions of higher education, shall be discharged or laid off from employment based on his race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran. Any employee discharged or laid off in violation of this subsection may bring an action pursuant to §2.2-2639c. of the Code of Virginia and recover back pay and attorneys fees as provided therein.

Delegate Ebbin made the following points in support of his amendment:

In this budget we are forced to adopt reductions in funding that could lead to the lay off or discharge of hundreds of employees across state government and in our colleges and universities.

These employees have no meaningful protection from lay off or discharge based on factors other than merit such as race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, genetic information, marital status, disability, sexual orientation or gender identity, or status as a veteran.

Although state employees should have some protection from discrimination under the Governor’s executive order, the new Governor has removed protections previously provided for the state’s gay, lesbian, bisexual or transgender employees, saying that it is up to the legislature to set the state’s policy in this regard.

And, even if applicable, the executive order offers little in the way of remedies for an employee who loses his or her job through the discriminatory action of a single supervisor.

Finally, state employees have little protection from discrimination under federal civil rights laws because of a series of Supreme Court decisions that have interpreted the 11th Amendment to the US Constitution as providing state immunity from suit in federal or state court for violations of the federal Civil Rights Act, the Age Discrimination Act, the Americans with Disabilities Act and the Equal Pay Act. It has been the policy and practice of the Office of the Attorney General for at least the last decade to aggressively assert this immunity defense in all discrimination cases brought pursuant to federal law by state employees.

This budget amendment does no more than extend to state employees the same limited right to recover back pay for discriminatory discharge that the state has extended to private employees in businesses with 5 to 15 employees (who also lack federal civil rights act protection). The only difference is that this amendment also protects state employees from discriminatory discharge based on sexual orientation and gender identity and adds protection from discrimination based on “genetic information” a new protection added by the federal Genetic Information Nondiscrimination Act of 2008, that protects employees from discrimination based on the results of genetic testing like testing that reveals a predisposition to breast cancer.

We’ve heard a lot about what’s good for the goose should be good for the gander in the context of debates about extending mandated benefits to both state and private employees alike. It’s time to assure our state employees, that as they face the uncertainty of the current economic and budget crisis, that we believe that they should be protected from discriminatory discharge just like their peers in the private sector.

It’s the right thing to do. And, it’s an action supported by almost 90% of Virginians who agree that even gay, lesbian and transgender people deserve protection from workplace discrimination and the right to work for the government.

I urge you to adopt this amendment.

So, what did the House do with this eminently reasonable proposal?

It ducked taking a stand on what the Governor has said is its job ... setting the personnel policy of the Commonwealth.

Delegate Bob Marshall (again!) moved to "pass the amendment by," a procedural move to kill it.

The House voted in favor of his motion 61-38 after a question from Delegate David Englin made clear that a vote in favor of the motion was a vote to kill the amendment.

You can watch the debate on the amendment:

Time to Do the Right Thing

Today, Equality Virginia, the AARP, the AAUP, the Virginia Education Association, the Virginia Governmental Employees Association, the Virginia AFL-CIO, and the Virginia Coalition of Latino Organizations stood together in support of SB 66, a bill that would, for the first time, codify protections against discrimination for Virginia's hard-working and underpaid state employees.

In 1970, Governor Linwood Holton established a tradition that Virginia chief executives followed until this year; his first official act as Governor was the issuance of an executive order promising state employees equal opportunity and protection from discrimination in the workplace.

35 years later, Governor Warner concluded his term by signing an executive order extending this protection to discrimination based on sexual orientation -- a promise of opportunity continued in Governor Kaine’s first executive order on Equal Opportunity issued the day he was sworn in as Virginia’s 70th Governor – a promise also extended by Governor Kaine’s order to Virginia’s veterans.

Despite this long history of executive action, the Virginia legislature has never acted to incorporate in the Code of Virginia an explicit and comprehensive ban on discrimination in public employment. And, as then Attorney General McDonnell said in an opinion he issued in 2006, the legislature's failure to act deprives the Governor of the authority to extend anti-discrimination policies to Virginia's gay, lesbian, bi-sexual or transgender employees by executive order.

It is past time for the Virginia legislature to make the Commonwealth’s equal opportunity policy clear and applicable equally to all public employees.

No state employee should have reason to doubt Virginia's commitment to equal opportunity in employment for all regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related conditions, age, marital status, disability, sexual orientation, or veteran status.

Today, eight members of the Senate General Laws Committee voted to report a bill that codifies past executive actions and makes equal opportunity a matter of legislative enactment.

Much has been made of the fact that this bill would include sexual orientation in the legislature's statement of the Commonwealth’s nondiscrimination policy.

Protecting Virginia’s gay, lesbian, bi-sexual and transgender public employees from discrimination is not a radical idea.

Virginia is far behind private sector employers in adopting such a nondiscrimination policy. Top employers protect their workers from discrimination based on sexual orientation, because it simply makes good business sense.

All of Virginia’s top ten largest private employers have sexual orientation protections in their non-discrimination policies:
• Wal-Mart
• Northrop Grumman Newport News
• Food Lion
• Sentara
• Inova Fairfax Hospital
• Science Applications International (SAIC)
• Booz Allen Hamilton
• Target
• UPS

30 states now have laws and ordinances that ban discrimination by all employers (public and private) based on sexual orientation; 12 and the District of Columbia include gender identity. Such nondiscrimination laws now cover over half of the United States population.

A poll of Virginia voters conducted by a bi-partisan polling team has found that, even among Virginia voters who would vote for a marriage amendment, 86% said gays and lesbians should have the right to work for the government.

It is time for the Virginia General Assembly to reject the insubstantial, biased, and fear based arguments against this legislation and make equal opportunity in employment the law for all Virginia state employees regardless of race, national origin, sex, age, disability, political affiliation, religion, and, yes, sexual orientation.

It is simply the RIGHT thing to do.

Please urge your Senator to vote YES on SB 66. You can find out who your senator is and how to contact him or her on the Virginia General Assembly home page.

Gay Republicans Praise McDonnell, Dis Cooch

David Lampo and other members of the Log Cabin Republican Club of Virginia have been active the last couple of days ... first complimenting gubernatorial candidate Bob McDonnell for his recent statements affirming his view that government should not discrimination against people based on sexual orientation and, then, blasting Cooch in an oped in the Augusta Free Press for his promise to discriminate actively against gay people as Attorney General.

Today, the Log Cabin Republicans issued a statement reacting specifically to quotes from Cooch included in the Virginian Pilot endorsement of Steve Shannon. Amy Gardner has the story on her Post blog.

Cooch told the Pilot:

He declined to commit to a nondiscrimination policy against gays and lesbians observed by former Attorney General Bob McDonnell: “ My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

The Pilot's response?

To put it politely, Cuccinelli’s election would bring embarrassment to Virginia, instability to the state’s law firm and untold harm to the long list of people who don’t fit his personal definition of morality.

The reaction from Log Cabin Republicans?

... we call on Republican leaders and candidates throughout Virginia to repudiate Cuccinelli's hateful remarks and stand with Bob McDonnell on this important issue.

Couldn't have said it better myself.

National Day of Silence ... Help Stop Bullying

Today is the Gay, Lesbian and Straight Education Network's (GLSEN) national day of silence which focuses attention on anti-GLBT bullying in our schools.

Words can kill.

'nuff said.

20 OUTstanding Virginians

Last Saturday night, Equality Virginia honored 20 OUTstanding Virginians ... GLBT people, living and dead, who have excelled in their fields and forged new paths for others to walk.


Get to know these people, learn about their accomplishments, honor their achievements, and understand why each of us is diminished when any of us is held back, considered "less than," deprived of full equality, or refused their very humanity.


Watch and learn.


Commit to "be the change you want to see in the world." Mahatma Ghandi


Commit to being part of making Virginia a place where, without exception, every gay, lesbian, transgender and bi-sexual person can live a life free of violence and discrimination, a life of equal possibilities and a life of dignity and respect.

Inquiring Minds Want to Know

Why is it that Delegate Mark Cole didn't want to answer questions about why he pulled a resolution honoring Equality Virginia on its 20th anniversary from the uncontested block? This isn't the first time he's taken steps to be sure that no one could accuse him of saying anything nice about a GLBT organization. Last year, he pulled a resolution honoring the Gay Community Center of Virginia from the block, too.

Watch the action on the floor of the House of Delegates.

Could it be that Delegate Cole and his allies in the House of Delegates are embarrassed by their apparent bigotry?

HRC State of the Workplace Report

State Of The Workplace 2007-2008

View more presentations from hrcworkplace. (tags: benefits discrimination)

Will "Love" Triumph?

I have a theory about "love" and "hate" on the campaign trail that will be tested today.

Four years ago, Democrats grudgingly chose John Kerry, a candidate that they "thought" could win, to vie against George W. Bush, a "hated" rival, who was then, and to some extent remains even now, fiercely "loved" by the base voters of his party. Regardless of whether you believe, as I do, that "hate" is too strong a label for partisan differences, the lesson of 2004 was two fold:

"Hate" as a political driver ultimately was ennervating for "thoughtful" Kerry forces, leaving husks behind, unable to sustain the emotional energy through the election. Hating Bush ultimately just wasn't enough to drive them to deliver victory to a candidate with whom they simply were not smitten.

At the same time, "love" grew in power, building through election day, sustaining the Bush forces in Ohio and elsewhere until the last poll was closed.

Now, four years later, it is the Republicans who chose "thoughtfully," turning grudgingly to someone with whom many in the base still are not comfortable, while Democrats turned away from the "she can win" analytical choice to embrace a candidate who touched their hearts and inspired passion in their souls.

And, while Democratic hearts went "all in" for Obama this year, the "thoughtful" McCain forces, in sorry repetition of Kerry four years ago, tried mightily to drive their base with hate and fear of their opposition, even while they tried pitifully to inspire some "love" for Palin as the capacitor that could spark the campaign with new energy.

So, the election today is the test for my "love"/"hate" theory.

Tonight we get the answer to the question whether love, in politics as in life, conquers all.