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AG’s office wanted to limit in-person comments on Youngkin’s proposed transgender policies

Attorney General Jason Miyares speaks into a microphone
Attorney General Jason Miyares speaks at a 2021 candidate forum. (File photo: Cliff Owen/The Associated Press)

Virginia Attorney General Jason Miyares’ office pushed the State Board of Education to ban in-person public comments related to proposed policies concerning the treatment of transgender students.

In an Oct. 18 email obtained by VPM News, Senior Assistant Attorney General Deborah Love told Daniel Gecker, chair of the board of education, that the board had no authority over the policies. Allowing the public to comment on them in that venue, Love wrote in the email, would violate the board’s bylaws and result in comments that could not formally be considered by the body actually in charge of the policies: the Virginia Department of Education.

“There is significant potential for confusion should the Board receive comments from the public on the proposed Model Policies,” Love wrote. She urged Gecker to refer people who wanted to comment on the policies to the official channel, a state website called Town Hall.

Gecker, who was first appointed to the board by former Gov. Terry McAuliffe, rejected what he described in an email as “unsolicited advice” that would have “limited our accessibility to the public and would be bad policy.”

At the Oct. 20 meeting, Gecker reiterated that the board had no authority over the proposed policies and that the comments would not be considered as part of the policies’ review. But he allowed the commenters to proceed. For more than three hours, parents, activists and students lined up to give their thoughts. The majority spoke out against the policies.

The proposed model policies would roll back some protections for transgender students issued under the previous, Democratic administration. If implemented, students would need permission from their guardians to go by different names or pronouns in their school, and would be required to use school facilities that correspond to their sex, rather than gender identity.

Some legal experts contend the proposal violates state and federal law, while LGBTQ+ rights advocates have accused Gov. Glenn Youngkin of targeting transgender students to advance his political career.

Youngkin has championed the proposal as part of a push for “parent’s rights” in education, though many of the comments the board received in person and online have come from self-described parents who oppose the policies.

Youngkin’s spokesperson did not respond to requests for comment on the AG office’s email.

Miyares’ spokesperson, Victoria LaCivita, encouraged people to submit feedback online, where it would be recorded into the public record.

“The Attorney General believes transparency is crucial in government, and that it is his responsibility to call balls and strikes,” LaCivita said. “The Attorney General wants to ensure that not only is every Virginian heard, but that they are heard by the correct entity.”

Gecker said the board “routinely hears public comment on any matter related to public education and said it “places great importance on hearing from parents, students, educators and other members of the public.”

The attorney general office’s legal argument hinges on a line in the board’s bylaws stating that the public “may address the Board during the public comment portion of the meeting on any matter related to public education which includes the action of the Board.”

“‘Which includes actions of the Board’ modifies the scope of permitted public comment to matters falling within the Board’s jurisdiction (which the Model Policies do not),” Love wrote. She cc’d Jillian Balow, the superintendent of public instruction, asking her to share the advice with other members of the board.

Eden Heilman, legal director at the ACLU of Virginia, said Love’s interpretation was incorrect, pointing to a state law that says “‘includes’ means includes, but not limited to.”

“Certainly, something that affects this many people — that has garnered 60,000-plus comments, that's resulted in thousands of students walking out of their classrooms across the state — the board has every right to hear testimony on this issue,” Heilman said in an interview.

The deadline for submitting comments online regarding the proposed policies is 11:59 p.m. Wednesday. State officials must then respond to any claims the policies might violate existing law — and post those responses for at least 30 days.

In an interview Monday, Balow said her team would spend time “really parsing out what the key themes are” in the comments before considering possible edits to the draft policies. She declined to discuss the effort of Miyares’ office to limit comment during board meetings.

The proposed policies don’t carry any weight on their own. Instead, they must be passed or modified by local school boards. Leaders in some localities, including Richmond, Fairfax County and Alexandria, have already said they won’t implement them.


Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.
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