RICHMOND, Va. -- The Virginia Department of Education (VDOE) released a new draft policy for the treatment of transgender students in the Commonwealth's public schools Friday afternoon. Officials with the VDOE said that if the new policy is approved, it would override the current 2021 policies.
The 2021 “Model Policies for the Treatment of Transgender Students” were applied in all school districts across the state per a 2020 Virginia law that requires all districts in the Commonwealth to adopt, at a minimum, the VDOE's model policies for transgender students.
That policy focused on protecting students' rights by guidance outlining that schools must not question how a student chooses to identify. For sports, the policy deferred to the Virginia High School League.
The new draft policy, titled “2022 Model Policies On the Privacy, Dignity, and Respect For All Students and Parents In Virginia’s Public Schools,” said the previous policies promoted a view “aimed at achieving cultural and social transformation in schools.” VDOE officials also wrote that the 2021 policy disregarded parents' rights and “ignored other legal and constitutional principles.”
In writing the new draft policy, the VDOE listed three guiding principles:
- Parent have the right to make decisions with respect to their children.
- Schools shall defer to parents to make the best decisions with respect to their children.
- Schools shall keep parents informed about their children’s well- being.
In the development portion of the draft policy, the VDOE wrote that the new policies were consistent with protecting parental rights under the Fourteenth Amendment. It also stated the new policies adhered to the First Amendment.
“The First Amendment forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs. Practices such as compelling others to use preferred pronouns is premised on the ideological belief that gender is a matter of personal choice or subjective experience, not sex,” the draft policy states.
The document provided what a sample policy would look like for a district. It addressed bullying and harassment, maintenance of student records, identifications of student and athletics.
In the “Maintenance of Records” section, the policy states school districts will change legal names in official records only if the parent or student submits a legal document.
The “Identification of Students” section in the draft policy has the most points. As written, it states personnel shall refer to each student using the name that appears in the student’s official record. The VDOE also addressed how to handle pronouns.
“Personnel shall refer to each student using only the pronouns appropriate to the sex appearing in the student's official record- that is, male pronouns for a student whose legal sex is male, and female pronouns for a student whose legal sex is female,” the draft policy states.
The document also states that nothing may encourage teachers or instructors to conceal information about a student’s gender from a parent.
For the use of school facilities, the draft policy said that students can use the bathroom that aligns with their sex, “except to the extent that federal law otherwise requires.” Another point added that all schools should have single-user bathrooms available for all students.
Under the athletics section in the draft policy, the VDOE wrote that participation in sports should be determined by sex.
When asked about the legality of the draft policy, University of Richmond Law Professor Jack Preis said that the statue in place dictates to follow what the executive branch says.
“The executive branch has now changed in its leadership, which means the executive branch can always change its mind. When it has a new head of branch, it may decide to change its mind,” Preis explained.
However, Preis said that bathrooms are controlled by federal law, which states students in public schools can use the bathroom that aligns with their gender identify.
Preis also pointed to a section of the proposed policy that states no teacher should have to use a pronoun that violates their personal rights. He said that issue is currently being decided in the Virginia Supreme Court in a case involving a teacher that says using a student's pronoun not aligning with the student's sex assigned at birth violates his religious freedoms.
Gov. Glenn Youngkin said the draft policy delivers on his commitment of preserving parental rights and upholding dignity and respect of students.
"It is not under a school’s or the government's purview to impose a set of particular ideological beliefs on all students. Key decisions rest, first and foremost, with the parents," Youngkin wrote. "The previous policies implemented under the Northam Administration did not uphold constitutional principles and parental rights, and will be replaced."
Parents and organizations are responding to the new proposed policy.
Hanover parent Chris Berg, who has a student who identifies as nonbinary, called the proposed policy problematic since it does not reference many gender identities. He said it would force teachers to use the pronouns she/her or he/him to identify his student instead of using the pronouns his student identifies with that are they/them.
“I’ve seen what happens when people misgender them. It’s really offensive. It hurts their feelings, it’s depressing and is going to make school really tough for them,” Berg said.
Berg also noted that he disagrees with the statement within the draft policy that this is an ideology or belief. He said his student can’t change the fact that they are nonbinary. He also believes this policy could out students to their parents.
“It’s important to not out these students to their parents, which is why this is so dangerous," Berg said. "If the child is transgender or gay or nonbinary and you out them to a parent or someone who isn’t supportive that’s really dangerous and where their depression and other things spike."
Officials with the Family Foundation of Virginia favor the new draft policy they said protects parental rights. The lobbying group said the previous policy deceived parents, threatened students' bodily privacy and safety as well as violated free speech.
“It looks like Governor Youngkin is really stressing the value that parents are involved and we are not undermining their role in some of these critical decisions,” said Todd Gathje, who serves as the Family Foundation's Director of Government Relations.
The Family Foundation had been leading a "Protect Every Kid" initiative in opposition to the 2021 policies. They had also been collecting petition signatures to urge Youngkin to re-write those policies.
VDOE officials wrote in a statement Friday afternoon that they will open the public comment on the policy in the coming weeks. There will then be 30 days for the public to comment. The VDOE will then review comments to see if any changes are warranted and then will approve the policy for school boards to then apply.
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