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Virginia’s Education Department moved forward this week with a set of controversial model policies for the treatment of transgender students in schools that experts say will likely result in a patchwork of responses around the state as some school boards embrace the guidelines and others fight the changes.
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The policies, a version of which all state school systems would be required to adopt, direct students to use facilities that match their biological sex and require written permission for school personnel to use different names or pronouns than what is in a student’s official record. They also prohibit school policies from encouraging teachers to conceal information about a student relating to gender from parents, and suggest making single-user bathrooms and facilities available in accessible areas for all students.
LGBTQ+ advocates and students say they are worried about students returning to campuses that may no longer be considered safe and accepting environments when they head back to school starting next month.
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“Regardless of if these harmful policies are adopted in your school in particular, to know that you’re in a state where, if the power of boundaries change within your school district … all the protections you enjoy could go away, because you just don’t have that fundamental protection,” said Gavin Grimm, who is transgender and who successfully sued the school board when he was banned from using the boys’ bathroom at his school in Gloucester County in a case that made national headlines.
The updated policies follow an early version released in September by the administration of Gov. Glenn Youngkin (R) that was put on hold to review tens of thousands of public comments, many of them opposing the guidelines. The final model policies include many of the same requirements with an emphasis on parents’ rights.
The new model policies replace the 2021 version of the policies enacted by then-Gov. Ralph Northam (D), that offered more robust protections for transgender students. But, much like the 2021 policies, legal and education experts and advocates say Youngkin’s version will probably serve as more of a suggestion for school boards than a mandate, with differences expected to fall along partisan lines.
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“Basically, it’s left to school administrators to try to figure out how to accommodate transgender students and how to accommodate parents and students who might be anti-transgender,” said Craig Konnoth, a University of Virginia law professor.
The state’s previous model policies were issued under Northam in response to a 2020 law, sponsored by Democratic legislators but passed on a bipartisan basis, that required the Education Department to develop model policies — and later required all school districts to adopt versions of them — for the protection of transgender students.
Northam’s policies allowed transgender students to use restrooms, locker rooms and changing facilities that match their gender identity. They also stipulated that schools let transgender students participate in school programs matching their gender identity and require that school districts and teachers accept and use students’ gender pronouns and identities.
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“Really what the 2023 policies are, are basically the somewhat vengeful, I think, for lack of a better word, rollback off the 2021 policies,” Konnoth said.
But Breanna Diaz, policy and legislative counsel for the ACLU of Virginia, said the adoption of Northam’s policies was inconsistent across the state, and the ACLU expects to see much of the same with the rollout of the new policies.
“We’re analyzing the model policies right now and we will be watching to see how school boards implement the policies and whether that implementation harms transgender or nonbinary students,” Diaz said. “We’re gonna see a patchwork of policies now in Virginia.”
Diaz said there is no clear enforcement mechanism to force school divisions to adopt the policies, nor was there one for the 2021 policies.
Youngkin spokeswoman Macaulay Porter said in an email that the Education Department fulfilled its responsibility to develop the model policies and school boards are expected to follow the law.
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“It looks to me like it’s going to sort of be cities, as opposed to more rural counties, having very different views of this,” said Carl Tobias, a University of Richmond law professor. “I’m worried about political fallout from it, in ways that divide families or divide localities.”
Bas Rawat, an 18-year-old former Fairfax County student headed into his second year at George Mason University, said that he used his pronouns and name at school before telling family. If his high school had required written parental notification, it would have drastically changed his high school experience, said Rawat, who identifies as transgender, nonbinary.
“A lot of kids are still closeted and not out to their parents as trans, and really the only safe space that a lot of these students have is high schools where they’re allowed to just tell their teachers like ‘Hey, change my name, these are my pronouns,’ and teachers are mostly accepting,” Rawat said.
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Shannon McKay, a parent of a transgender daughter who graduated this year from a Henrico County high school and executive director and co-founder of He She Ze and We, a Richmond-based nonprofit advocating for transgender and nonbinary people, said she fielded questions from about 15 families of LGBTQ+ students on Wednesday morning about what the policies would mean for their students.
She said that advocating for her daughter was so difficult without the model policies in place that she can’t imagine how much harder it will be for students in districts that adopt the policies.
“The wording about parents’ rights, that parents’ values and beliefs are to be respected, that all sounds great, right?” McKay said. “But they’re not respecting the parents of trans and nonbinary students.”
Other families praised the new model policies for giving control to parents, who they argue are best fit to make decisions about children’s lives, and see the model policies as a clear follow-through on a campaign promise from Youngkin, who based a lot of his 2021 campaign on “parental rights.”
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Ian Prior, a father in Loudoun County and former Trump administration official who leads the parents’ rights group Fight for Schools, said the Education Department’s decision to move forward on the policies was a win for parents.
“It’s only fitting that the governor fulfilled his promise and revise these in a way that puts parents back in a spot where they have a right to know what’s going on at school and have the right to have input, specifically where it involves very sensitive topics,” Prior said.
Some school districts have already taken a stance on whether they will implement the new model policies, which went into effect as the official state guidance on Wednesday.
“We believe our current FCPS policies are consistent with federal and state anti-discrimination laws,” Fairfax County Schools Superintendent Michelle Reid said in a messages to county families Wednesday. “We also believe that supporting our students and working with parents and caregivers are not mutually exclusive; we already do both and will continue to do so.”
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Fairfax County currently allows students access to restrooms and locker rooms that match their gender identity and requires school staffers to address transgender students by their names and pronouns.
A spokesman said in a statement that Loudoun County Public Schools was aware of the guidance and reviewing the policies. And Richmond Public Schools Superintendent Jason Kamras tweeted that he would recommend that the board rejects the updated policies.
“At RPS, our motto is to Teach with Love. That means embracing and protecting our students for exactly who they are,” Kamras tweeted.
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