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In 2021, the Department of Education under Gov. Ralph Northam in Virginia released its Model Policies for the Treatment of Transgender Students in Public Schools. These policies required local school districts to adopt similar guidelines as mandated by the state.
The 2021 model policies emphasized the use of chosen pronouns when referring to students and required schools to provide accommodations for “gender-expansive, non-binary, and gender nonconforming” students in restrooms and locker rooms.
Although the model policies did not explicitly address keeping a student’s “gender identity” confidential from their parents, some school districts in Virginia implemented this concerning practice through regulations and staff training programs.
Gov.-elect Glenn Youngkin speaks at an election night party in Chantilly, Virginia, on November 3, 2021.
(AP Photo/Andrew Harnik)
Last week, the Department of Education under Gov. Glenn Youngkin introduced revised model policies. These new policies aim to restore the focus in Virginia’s schools on academics and respect, rather than being platforms for social experiments that potentially harm the well-being of children.
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According to the new policies, schools cannot compel teachers and students to use pronouns that violate their First Amendment rights. Counseling cannot be mandated for students if their parents object, and students are expected to use restrooms and locker rooms aligned with their biological sex, unless federal law states otherwise.
Some school districts in Virginia have indicated a reluctance to comply with these new policies, despite being required by state law. Fairfax County school board members have signaled non-compliance, and the superintendents of Alexandria and Arlington have openly stated their refusal to implement the policies.
However, Loudoun County’s incoming superintendent, Aaron Spence, recently expressed his commitment to aligning with the new set of model policies.
In addition to common sense motivations, such as maintaining separate bathrooms and locker rooms based on biological sex, informing parents about their children’s mental health issues, and requiring parental involvement for student identity choices at school, school districts in Virginia are exposing themselves to constitutional lawsuits by disregarding these policies.
For instance, school districts that seek to enforce the use of preferred pronouns should closely examine the Supreme Court’s recent ruling in 303 Creative LLC v. Elenis. The court affirmed that the government cannot compel individuals to convey its preferred messages.
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If school districts persist in keeping parents uninformed under the guise of “transgender student inclusion,” they should pay attention to the oral arguments in the Fourth Circuit Court of Appeals case, John and Jane Parents 1 v. Montgomery County Board of Education. While a decision on potential violations of parents’ due process rights under the 14th Amendment is pending, the judges displayed skepticism regarding the constitutionality of these policies.
Regarding bathrooms and locker rooms, school districts have relied on the Fourth Circuit’s ruling in Grimm v. Gloucester County School Board. However, this decision established rights beyond what the Constitution or Title IX dictate and stands in contrast to recent rulings in the Sixth and Eleventh Circuits.
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Furthermore, that ruling did not extend to locker rooms. The court acknowledged that Grimm had a medical diagnosis of gender dysphoria, official records reflecting a name change, and the full involvement of Grimm’s mother in the restroom usage plan.
In the case Kincaid v. Williams last year, the Fourth Circuit deemed gender dysphoria a disability under the Americans with Disabilities Act (ADA). While the validity of this conclusion is debatable, Justices Samuel Alito and Clarence Thomas share doubts. Nonetheless, the court distinguished between individuals with “gender dysphoria” and those with “gender identity issues,” stating that the latter is not a quasi-suspect class in terms of equal protection.
Considering the aforementioned cases, it becomes evident that school districts in the Fourth Circuit, like Fairfax and Loudoun County Public Schools, are prioritizing students who are not considered a quasi-suspect class over girls, who are. This creates the potential for equal protection and Title IX claims from female students.
It is high time for Virginia’s schools to refrain from managing the morals, values, mental health, and physical well-being of students in violation of the Constitution. Instead, they should adopt these model policies and concentrate on preparing students for academic success. Failure to do so will only lead to continued legal battles, possibly even in the Supreme Court.
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