The ACLU of Virginia’s lawsuits challenging Virginia’s model policies for transgender public school students have now been tossed out by two state judges — for procedural reasons. Attorneys for the Virginia Department of Education successfully argued state law shields the agency from being sued under the sovereign immunity doctrine.
Circuit courts in Hanover and York counties also agreed with VDOE’s attorneys that the ACLU missed an administrative deadline when it filed the lawsuits in February.
Wyatt Rolla, the ACLU of Virginia’s senior transgender attorney, and Andrew Ewalt with Freshfields Bruckhaus Deringer provided a statement to VPM News on Wednesday about the court’s “ruling on technical grounds today rather than the substance of the case.”
“The Virginia Department of Education (VDOE) knew its anti-trans model policies couldn’t stand up to scrutiny in a court of law,” They said in the statement. “Those policies have already resulted in discrimination that violates state and federal law – as we saw last month when a federal judge granted a preliminary injunction to a trans student so she could try out for a sports team that Hanover County School Board said it had banned her from because of VDOE’s model policies.”
The ACLU’s complaint asked the court to strike down the policies Republican Gov. Glenn Youngkin’s VDOE issued in July 2023 and replace them with policies issued in 2021 under Gov. Ralph Northam, a Democrat.
LGBTQ+ students, parents and organizations were consulted during the formation of the 2021 policies.
“Protecting transgender students’ privacy is critical to ensuring that they are treated consistent with their gender identity and minimizing the risk of harm to the students,” those policies state.
The most recent policies align with Youngkin’s focus on keeping parents informed about their children’s lives, echoing a broader conservative trend of focusing on the rights of parents when it comes to their children. As VPM News previously reported when the policies were first released, Virginia parents have had a “fundamental right” to decision making involving their children in state code since Republican Gov. Bob McDonnell’s term in the early 2010s.
“The Department supports efforts to protect and encourage respect for all students,” the new policies state. “The Department also fully acknowledges the rights of parents to exercise their fundamental rights protected by the Fourteenth Amendment of the U.S. Constitution to direct the care, upbringing, and education of their children. The Code of Virginia reaffirms the rights of parents to determine how their children will be raised and educated.”
Rolla and Ewalt’s statement added, “if the state discriminates against you or your child, you should be able to do something about it.…”
Equality Virginia, in 2023, called Youngkin’s policies “politically motivated” and said they ignore thousands of public comments opposing them. As executive director Narissa Rahaman said in that statement, “Youngkin did all of this with no input from LGBTQ+ advocacy groups nor subject matter experts…”
A 2020 state law during Northam’s term required the state education department to develop model policies regarding the treatment of transgender students “in accordance with evidence-based best practices” and that include guidance for how to handle issues like the enforcement of sex-based dress codes, participation in sex-segregated sports, and the identification of students.
That law also directed local school boards to adopt policies that were either consistent with or more comprehensive than the state’s guidance.
Read the published iterations of the Virginia Department of Education's model policies for transgender students: The 2021 model policies (downloads a .docx), 2022 model policies draft or the final 2023 model policies.
