Mark Spooner | Fairfax Schools Monitor

Introduction

Two recent posts on this site have reported on, and criticized, the Fairfax County School Board’s transgender regulation.  See “Fairfax Parents Excluded From Kids’ Gender Issues,” Aug. 31, 2022, and “Trans Rules Fairfax Schools,” Sept. 7, 2022.

The Fairfax County regulation has now been thrown into doubt.  On September 16, 2022, the Virginia Department of Education, under Governor Glenn Youngkin, issued a document entitled “2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools” (“hereinafter Model Youngkin Policy”).   It articulates a very different approach towards transgender issues than the Fairfax regulation does.  The differences affect parental rights, co-ed facilities, pronoun usage, and other issues.

This article (i) provides background information about the Virginia statute that has given rise to these policies, (ii) explains the differences between the Fairfax regulation and the Model Youngkin Policy, and (iii) addresses the question whether the Model Youngkin Policy will have any practical effect in the Fairfax County public school system.

Background

In 2020 the Virginia legislature enacted a statute addressing the treatment of transgender students in public schools.  Section 22.1-23.3 of the Virginia Code now provides:

“A. The Department of Education shall develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards relating to:

1.  Compliance with applicable nondiscrimination laws;

2.  Maintenance of a safe and supportive learning environment free from discrimination and harassment for all students;

3.  Prevention and response to bullying and harassment;

4.  Maintenance of student records;

5.  Identification of students;

6.  Protection of student privacy and the confidentiality of sensitive information;

7.  Enforcement of sex-based dress codes; and

8.  Student participation in sex-specific school activities and events and use of school facilities.  Activities and events do not include athletics.

B.  Each school board shall adopt policies that are consistent with but may be more comprehensive than the model policies developed by the Department of Education pursuant to subsection A.”

As required by subsection A of the statute, the Virginia Department of Education in the administration of Governor Ralph Northam issued a document in March 2021 entitled “Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools” (“Model Northam Policy”).  A link to that document is HERE.

Following the issuance of the Model Northam Policy, the Fairfax County School Board adopted Regulation 2603.1, entitled “Gender-expansive and Transgender Students” (“Fairfax Regulation”).  It was amended in April 2022 and is now Regulation 2603.2.  The text of the Fairfax Regulation is HERE.  In several respects it gives more rights to transgender students than the Model Northam Policy does.

The new Model Youngkin Policy is HERE.

Summary of the Fairfax Policy

The Fairfax Policy is described in the two articles identified (and linked) in the Introduction above.  In brief summary, its key provisions are:

• Regardless of age, if a student tells school personnel that he/she believes his/her true gender differs from his/her biological gender, the assertion must be accepted as reality by the school system.
• If a student does not agree to share his/her gender dysphoria with his/her parents, the school system must maintain that confidentiality.
• When a student identifies as transgender, the school shall offer to convene a support team for him/her.
• If a student opts to use a name different from his/her birth name, the school shall use the new name in accordance with the student’s wishes.  (There are exceptions for permanent school records, which must be maintained under the student’s birth name.)  Likewise, if a student opts to be identified by pronouns that differ from those associated with his/her birth gender, those pronouns shall be used as the student specifies, both by school personnel and by fellow students.
• A transgender student has the option of participating in sex-segregated intramural sports and other activities either with members of his/her biological gender or with members of the opposite gender.
• A transgender student can use whatever restrooms and locker rooms he/she is comfortable with.  Other students who have privacy objections to this must request alternative accommodations for themselves.
• If school activities require overnight lodging in another city or town, transgender students have the right to have a roommate of his/her transgender identification.

Summary of the Youngkin Policy

The administration of Governor Youngkin replaced the administration of Governor Northam in January 2022, following a gubernatorial campaign that emphasized education issues.  The newly issued Model Youngkin Policy is one of several actions taken so far to reverse or revise the education policies of the prior administration.  The Youngkin administration states that the prior policy is being withdrawn because it “promoted a specific viewpoint aimed at achieving cultural and social transformation in schools, … disregard[ing] the rights of parents and ignor[ing] other legal and constitutional principles ….”

The Model Youngkin Policy is similar to its predecessor is some respects.  For example, both address discrimination and bullying, and require transgender students to be treated with dignity and respect; and both provide for counseling services for students with gender dysphoria.  But the Model Youngkin Policy differs from the Model Northam Policy and the Fairfax Regulation  in several important ways, including:

1.  Whereas the Fairfax Regulation and its accompanying guidance characterize gender as “a socially constructed system of classification,” thereby suggesting that male-female characterizations are based on mere social conventions, the Model Youngkin Policy recognizes that the difference is a biological reality.  Thus, as used in the Model Youngkin Policy, “the word ‘sex’ means biological sex.”

2.  Whereas the Fairfax Regulation permits schools to hide transgender issues from parents if a student wishes to do so, the Model Youngkin Policy requires parents to be informed and to be involved.  The policy cites, among other things, a Virginia statute that affirms a parent’s “fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”  Va. Code §1-240.1.  (Some provisions of the Policy do not apply to students who are eighteen years of age or older, or to younger students who have been legally emancipated from their parents.)

3.  Whereas the Fairfax Regulation requires schools to accept a student’s assertion of transgender status, the Model Youngkin Policy recognizes that a child’s gender-identity issues might be temporary or the result of bad guidance.  Thus, under the Policy, a “transgender student” is defined as one “whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs from his or her sex,” that the student be treated at school as transgender.

4.  Whereas the Fairfax Regulation requires school personnel to use a new name selected by a transgender student, the Model Youngkin Policy states that the staff shall refer to the student only by the name on the student’s official record or a nickname commonly associated with that name, unless the student’s parents provide different instructions in writing.    Likewise, the Policy states that school personnel shall only use the pronouns associated with the student’s biological sex, unless otherwise instructed in writing by the child’s parents.

5.  Whereas the Fairfax Regulation permits students to participate in sex-segregated school activities with students of their trans-gender, the Model Youngkin Policy states that participation shall be determined by biological gender, unless otherwise required by federal law.

6.  Whereas the Fairfax Regulation allows transgender students to use whatever restrooms and locker rooms they desire, the Model Youngkin Policy states that usage will be based on biological gender, unless otherwise required by federal law. The Policy directs schools to provide reasonable accommodations for transgender students, such as single-user facilities, taking into account the resources and staff available in the school, as well as the rights and needs of other students; but, unlike the Fairfax Regulation, the desires of a transgender student are not to be given paramount status over the privacy rights of others.

7.  Whereas the Fairfax Regulation entitles a transgender student to be housed in overnight travel accommodations with a member of his/her trans-gender, the Model Youngkin Policy states that such housing must be based on biological gender.

Will the Model Youngkin Policy Affect Fairfax County Public Schools?

The Virginia statute governing treatment of transgender students requires each school board to “adopt policies that are consistent with but may be more comprehensive than the model policies developed of the Department of Education ….”  Va. Code §22.1-23.3.

The Department of Education policies now state that parents have a fundamental right to be informed about, and to participate in dealing with, their child’s gender dysphoria.  Thus, unless the Model Youngkin Policy is determined to be unlawful, the Fairfax County School Board is legally obligated to revise the Fairfax Regulation to conform to the state mandate.  Likewise, since the Model Youngkin Policy states that usage of intimate, sex-segregated spaces shall be determined by a student’s biological sex (while endeavoring to make reasonable accommodations for transgender students), the Fairfax board is required to comply, unless it challenges and overturns the Department of Education’s policy in court.

But will the Fairfax County School Board comply?  My prediction is that it won’t voluntarily do so.  Given the Board’s commitment to policies that enshrine the desires of transgender students, giving them priority over parental rights and the rights of other students, it seems unlikely that the School Board will willingly change its emphasis.  Moreover, the Virginia statute doesn’t contain a clear-cut enforcement mechanism.  A recent newspaper article reports that relatively few school districts in Virginia adopted policies that conformed to the Model Northam Policy.  See “Despite law, few Virginia school districts adopt state model transgender policies,” Virginia Mercury, Sept. 12, 2022, https://www.virginiamercury.com/2022/09/12/despite-law-few-virginia-school-districts-adopt-state-model-transgender-policies/.  Thus, school boards that choose to ignore the new policy may be able to get away with it.

There are two likely scenarios in which a legal challenge to the Fairfax Regulation might occur:

• Scenario 1: A biological girl (or group of girls) is forced to find alternative locker room arrangements because a biological boy is exercising his right under the Fairfax Regulation to use the girls’ locker room.  Their parents could sue the School Board, arguing that the Regulation violates the Department of Education’s model policy and therefore violates Va. Code §22.1-23.3, as well as other legal protections.
• Scenario 2:  A student refuses to use a transgender student’s chosen new name and/or pronouns and is disciplined by the school system for violating the student code of conduct, which requires all students to refer to a transgender student by his/her chosen name and pronouns.  Since this is inconsistent with the Model Youngkin Policy’s allowance of birth names an pronouns, the disciplinary action could be challenged as a violation of Virginia law, which requires school boards to adopt policies that are consistent with the Department of Education’s policies.

It will be interesting to see how this plays out in the coming weeks and months.

Mark Spooner, a retired attorney, is the founding editor of Fairfax School Monitor, where this article was first published.