Is it enforceable?: Youngkin's proposed trans student policy examined
By Whittney Evans and Megan Pauly
Del. Danica Roem (D-Prince William), the nation's first openly transgender legislator, reacted to Gov. Glenn Youngkin’s administration proposing that public schools involve parents in policies related to transgender students.
The law of Virginia has been settled on this since 2020, @GovernorVA. ⬇️— Del. Danica Roem (@pwcdanica) September 17, 2022
You can’t use executive action to overturn § 2.2-3900, the Virginia Human Rights Act.
If you want a debate, then we’ll see you at a microphone.
If you want to break the law, then we’ll see you in court. https://t.co/rYbijHvC0S
“Don’t give up. No one is going to allow the governor to take your civil rights,” Roem told trans kids in Virginia while speaking to VPM News this week.
Youngkin’s administration proposed new guidance for how Virginia public schools should treat transgender students, shifting the focus from the rights of children to the rights of their parents. If approved, the 2022 Model Policies On The Privacy, Dignity And Respect For All Students And Parents In Virginia’s Public Schools would require students to use restrooms that align with the sex they were assigned at birth, “except to the extent that federal law otherwise requires.”
The 20-page document acknowledged the Grimm v. Gloucester County School Board case in which the U.S. Court of Appeals held that transgender students must be allowed to use the restroom that corresponds to their chosen gender.
But if the policy’s adopted, students would only be able to participate in athletic programs and other activities that correspond with their biological sex, according to the proposed guidance. And they’d need written permission from their parents to go by a different name or use a different pronoun than what is in their official school records.
The administration cites a Virginia law passed in 2013 that affirms a parent’s right to “make decisions concerning the upbringing, education, and care of the parent’s child.”
Macaulay Porter, a Youngkin spokesperson, explained the policy in an email to VPM News.
"This is about the right of parents to be involved in such important decisions and all our students are treated with dignity," she wrote. "The law mandating that [the Virginia Department of Education] have a policy is cited, and the model policy is crafted to ensure local school boards who adopt it fully comply with all applicable federal and state laws."
Following a 30-day comment period, school divisions can adopt the draft policies if they’re given final approved by State Superintendent of Public Instruction Jillian Balow. The draft policy also directs districts to abandon the guidelines VDOE issued last year under Democratic Gov. Ralph Northam. Those guidelines advised that “divisions should accept a student’s assertion of their gender identity without requiring any particular substantiating evidence, including diagnosis, treatment, or legal documents.”
Northam’s policies were developed pursuant to legislation the General Assembly passed in 2020 that required VDOE to have model policies for transgender students in place using evidence-based, best practices.
Carl Tobias, a University of Richmond law professor, said he thinks Youngkin’s proposal violates that law.
“They seem to do something almost diametrically opposed to what the legislators intended in passing legislation,” Tobias said.
He said the 2020 legislation was clearly meant to protect transgender students, not make it more difficult for them.
“The legislature has spoken and spoken clearly,” Tobias said. “I don’t think you can change that policy without convincing the legislature to change it.”
Del. Marcus Simon (D-Fairfax) sponsored that legislation. He told VPM News that Youngkin’s draft policy doesn’t reflect evidence-based practices and argued it likely violates the Virginia Human Rights Act, which protects against discrimination based on gender identity, among other things.
"There’s a whole bunch of things that are wrong with the way this was done, but I think that’s mostly because the governor isn’t interested in the policy here,” Simon said.
But Simon did point out that some localities might not adopt the policies, just as the vast majority of districts didn’t adopt the Northam administration’s policies.
“No school is bound by this policy. It’s a tool that’s available to school systems and school boards to adopt but the state doesn’t do that kind of micromanagement of school systems,” Simon said. “The state constitution requires schools be governed by local school boards.”
Some schools, though, could choose to adopt the policy verbatim. “It seems to me that it’s more ripe for a challenge once a school system attempts to adopt the policy and make it an actual policy that actually affects a student,” Simon said.
Another issue is that the Virginia High School League — the organization that sanctions high school sports — is a private nonprofit, which exempts the group from the model policies.
“To the extent that this new policy tries to tell them what to do, I don’t [think] they can,” Simon said. “But again, I don’t think these guys were terribly worried about the nuances of what was legal and illegal, and what was enforceable and not enforceable when crafting this policy.”
The newly proposed model policy is scheduled for a 30-day public comment period starting Sept. 26.
This story was produced with assistance from the Public Media Journalists Association Editor Corps funded by the Corporation for Public Broadcasting, a private corporation funded by the American people.