New school guidelines released Friday by Virginia Gov. Glenn Youngkin’s (R) administration require transgender students to use school facilities that match the sex they were assigned at birth and make it harder for them to socially transition.
Families will be required to submit legal documentation for students to be able to change their name and gender on school records. But teachers will be allowed to misgender students even if parents submit all the required requests, citing teachers’ rights to free speech. Teachers will also be required to share information about students’ gender identity with their parents.
All 133 of the state’s school districts will be required to adopt some version of the “model policies” next month, according to The Washington Post.
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The new policy would undo those enacted by Virginia’s previous governor, Ralph Northam (D), which beginning in 2021 required schools to honor trans students’ gender identities and grant them access to school facilities and programs that correspond with their gender identity.
A 30-day comment period begins September 26, after which Virginia’s Board of Education will review the comments and Superintendent of Public Instruction Jillian Balow will approve a final version of the policy, according to a spokesperson.
But experts expect the policy to be challenged. University of Virginia law professor Craig Konnoth says that the new policy goes against the intent of a 2020 Virginia law passed with bipartisan support that requires the state’s Department of Education to develop model policies to protect transgender students.
That statute, says Konnoth, “was enacted to protect transgender students,” while the Youngkin administration’s guidelines “prioritize red tape and teachers’ beliefs over student well-being.”
“The law requires the policies to be based on evidence and best practices and should have the best interest of all students — that includes trans students — in mind,” said Del. Marcus B. Simon (D), who introduced the 2020 legislation in the Virginia House of Delegates. “These policies clearly don’t meet that standard and I don’t think are consistent with the bill I introduced.”
According to University of Richmond law professor Carl Tobias, the new policy is also vulnerable on procedural grounds. “If you don’t like it as governor, and your administration doesn’t like it, then you needed to go to the General Assembly and amend that statue,” he said. “Rather than backdoor it with an executive branch action … I expect there would be legal challenges to this.”
Konnoth also noted that a 2020 federal appeals court ruling that a Virginia school board discriminated against trans activist Gavin Grimm when it denied him access to his school’s men’s restroom may render the bathroom restrictions in the new policy meaningless.
Virginia state Del. Danica Roem (D) has suggested that the new policy violates the Virginia Human Rights Act.
“@GovernorVA’s action should be contested in court under the Virginia Human Rights Act,” Roem tweeted. “Executive fiat does not overrule state law, as the Governor found out earlier this year.”
.@GovernorVA’s action should be contested in court under the Virginia Human Rights Act.
This is one of the laws passed by the Virginia General Assembly *with bipartisan support* in 2020.
— Del. Danica Roem (@pwcdanica) September 17, 2022