By Kennedy Eagle
In 2019, Virginia once again took the spotlight on progress when the 4th Circuit Court of Appeals affirmed the lower court’s ruling in Grimm v. Gloucester County Schools, holding that schools had to allow transgender students to use their gender affirming bathroom.[1] The Supreme Court then denied certiorari.[2] Three years later, the Virginia executive branch is attempting to force the state backwards regarding the fair and equitable treatment of transgender youth. On September 16, 2022, the Virginia Department of Education (VDOE), under guidance from Governor Youngkin’s administration, announced their “2022 Model Policies” on transgender youth in Virginia Public Schools.[3] The policies will take effect after a 30-day public comment period which started on September 26, 2022.[4]
All 133 school divisions in the Commonwealth of Virginia are required to adopt policies that encompass the model policies, but they could go further if they decide to.[5] Governor Youngkin claims that these policies are completely legal, but Danica Roem, the first openly transgender state lawmaker, believes that the model guidelines are riddled with constitutional and state law violations.[6] Specifically, the guidelines require bathroom use based on the students’ “biological sex at birth,” not their gender identity.[7] Ironically, five pages before this part of the model policy, the document notes the holding in Grimm as governing law used to develop the guidelines.[8] Additionally, they require segregation based on “biological sex at birth” in Virginia High School League (VHSL) sports, which is a separate, private entity from public schools in Virginia. The VDOE does not have the authority to regulate how the VHSL operates.[9] Teachers must tell parents any material information about a student related to gender, and students must have parental consent to go by any different nicknames, names, or pronouns than what are in the student’s school record.[10]
Governor Youngkin’s policies are aimed at putting parents first and protecting constitutional rights, but they will not protect the constitutional right to be free from discrimination for transgender youth.[11] The model policies prohibit school personnel and other students from being compelled to call a student by their chosen name or gender affirming pronouns if it “would violate their constitutionally protected rights.”[12] Currently, there is no binding precedent for Virginia on the issue. The Fourth Circuit heard Vlaming v. West Point School Board, which arose from a dispute in which a teacher was fired for not using the proper pronouns for a student, but the circuit court dismissed due to lack of subject matter jurisdiction without touching the merits of the case.[13] In the Sixth Circuit, however, the Court of Appeals did hold that an Ohio public university violated a professor’s free speech rights when it punished him for using the inappropriate pronouns when referring to a student.[14] Governor Youngkin’s new policies will likely lead to new precedents regarding transgender student rights in Virginia.
Students in Virginia are speaking out against these policies with more than 90 schools participating in a walkout.[15] These policies will hurt students. They will be outed to their parents before they are ready or forced to stay “in the closet.” They will be misgendered at school. They will be kept out of the bathrooms that they have a constitutional right to use. These policies will hurt kids. These policies are parent-focused, not student-focused. This is Glenn Youngkin putting his far-right politics first, not the students of the Commonwealth of Virginia.
[1] Grimm v. Gloucester Cnty. Sch. Bd., 2019 U.S. Dist. LEXIS 244044 (E.D. Va. 2019)
[2] Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); Gloucester Cnty. Sch. Bd. v. Grimm, 2021 U.S. LEXIS 3441 (U.S. 2021).
[3] Abigail Constantino, Virginia Issues New Guidelines That Roll Back Transgender Student Rights, InsideNOVA (Sep. 17, 2022) (https://www.insidenova.com/headlines/virginia-issues-new-guidelines-that-roll-back-transgender-student-rights/article_acc4aa50-36a0-11ed-b81a-4f8defb83cee.html).
[4] Dominga Murray, Del. Sally Hudson Discusses Opening of Public Feedback Forum for Gov. Glenn Youngkin’s Trans Model Policies, NBC29 (Sep 28, 2022) (https://www.nbc29.com/2022/09/28/del-sally-hudson-discusses-opening-public-feedback-forum-gov-glenn-youngkins-trans-model-policies/).
[5] Virginia Department of Education, 2022 Model Policies on the Privacy, Dignity, and Respect For All Students and Parents in Virginia’s Public Schools, 6 (2022) (https://doe.virginia.gov/support/gender-diversity/2022-model-policies-on-the-privacy-dignity-and-respect-for-all-students-town-hall.pdf) (hereinafter “2022 Model Policies”)
[6] Neal Augenstien, Legal Challenges Likely Against New Virginia Policies on Transgender Students, InsideNOVA (Sep. 19, 2022) (https://www.insidenova.com/headlines/legal-challenges-likely-against-new-virginia-policies-on-transgender-students/article_4b5c4f58-383e-11ed-8d1e-63a0c562e0dc.html).
[7] 2022 Model Policies at 18.
[8] Id. at 9.
[9] Id.
[10] Id. at 16.
[11] Id. at 2.
[12] Id. at 16.
[13] Vlaming v. W. Point Sch. Bd., 10 F.4th 300, 311 (4th Cir. 2021).
[14] Meriwether v. Hartop, 922 F.3d 492, 518 (6th Cir. 2021).
[15] Cormac Dodd, Students Protest Youngkin’s Transgender Policies, The Winchester Star (Sep. 27, 2022).