Despite law, few Virginia school districts adopt state model transgender policies

Two years after a law passed the General Assembly requiring Virginia school districts to adopt policies for transgender and nonbinary students, few have opted to embrace model policies developed by the state.

In 2020, school boards were required by legislation to adopt policies similar to or more comprehensive than models developed by the Virginia Department of Education for the treatment of transgender students no later than the 2021-22 school year.

As of early September, however, only 10% of school boards have adopted the model policies, according to Equality Virginia. The LGBTQ+ advocacy group, which is tracking districts’ rollout of the law, said 13 school divisions have fully adopted the VDOE model policies, while 90 have opted to follow guidance put forward by the Virginia School Boards Association that contends existing policies fulfill the law’s requirements. Still other districts have rejected new policies outright.

“I’m a little disappointed with the reluctance of some school boards to follow the laws,” said Del. Marcus Simon, D-Fairfax, who carried the legislation along with Sen. Jennifer Boysko, D-Fairfax, in 2020.

The 2020 law, which Equality Virginia Executive Director Narissa Rahaman called “landmark legislation,” lacked an enforcement mechanism, however.

Simon said while he hopes school boards in Virginia will adopt the policy, he is considering revisiting the legislation in the future and including some incentives or penalties. An attempt during the last legislative session to remove the requirement for school divisions to adopt the policies failed in committee.

Model policies

The model policies developed by the Virginia Department of Education sought to minimize discrimination against and maximize academic opportunities for transgender and nonbinary students in public schools.

The 2020 law, which was signed by former Democratic Gov. Ralph Northam, identified eight key areas policies should address. Conversations since then have most notably focused on how students are identified and the use of bathrooms and locker rooms that conform to a student’s gender identity.

Republican Gov. Glenn Youngkin has been more critical of the effort. He recently criticized Fairfax County for its transgender student policies policies and said parents should be informed about students’ gender identity or sexual orientiation.

“I cannot believe that bureaucrats and administrators can tell teachers to engage in these discussions and allow these decisions to be made without informing a parent,” Youngkin said at an Aug. 31 rally in Northern Virginia. “It cannot happen.”

Simon said the model policies were designed to give school boards and administrators guidance on evidence-based practices, while Boysko said they had been developed with “lots of public input” from teachers, administrators, students and parents across the commonwealth.

The most recent National School Climate Survey conducted by GLSEN, a group formerly known as the Gay, Lesbian and Straight Education Network that advocates for LGBTQ+ students, found that most LGBTQ+ secondary school students felt unsafe in school in 2019, largely because of their sexual orientation and how they expressed their gender. Many also said they lacked access to resources, such as an LGBTQ+-inclusive curriculum, and were not protected by supportive and inclusive school policies.

In the wake of the 2020 law, groups including the Christian Action Network attempted to block these policies, including in Lynchburg City, where a judge dismissed their suit.

James Fairchild, an attorney who represented the plaintiffs in the case, wrote in court documents that Virginia’s model policies went beyond treating all students “compassionately and with great care.”

He said the policies “venture into an unscientific and ideological anti-biology bias that present a false reality land by embracing and imposing upon everyone an unworkable framework and by accepting transgender activists’ fictional unsustainable social construct that denies the biological character of sex and instead treats sex as somehow a mere ‘label’ assigned at birth.”

Different approaches

School districts in Virginia have taken different approaches to addressing the state requirement.

Some, like those in Loudoun and Fairfax, have adopted the model policies. Newport News initially rejected the state recommendation but later reversed that decision.

A handful, including Augusta, Bedford, Pittsylvania and Russell counties, have rejected the policies outright, while the school board in the city of Chesapeake never allowed the policies to come up for a vote.

Russell County School Board Chair Cynthia Compton said last summer during the board’s vote that she believes the school division is in compliance with state law and is in the business of “trying to keep every child safe while they are at school.”

Last summer, the Warren County School Board declined to adopt any of the policies.

Warren School Board Member Ralph Rinaldi said it was important to be a model for other counties and come up with a solution that’s “good for the students of Warren County first and everybody else second.”

School board chairs in Chesapeake and Russell did not immediately respond for comment.

The Hanover County School Board recently passed a policy requiring transgender students who seek access to a restroom, locker room or changing facility that aligns with their gender identity to submit a written request to the school principal.

The request must include signed statements that the student has been diagnosed with gender dysphoria or consistently expresses a binary gender identity, statements from the student’s parent or guardian and the student’s disciplinary or criminal records.

Rahaman said Hanover’s policy is “invasive” and unnecessary and will further stigmatize and potentially bring harm to transgender and non-binary students.

Many other divisions have argued their current policies are aligned with the response provided by the Virginia School Board Association, which they say are in compliance with state law. VSBA’s five-page document outlines how the association believes its policies meet the requirements of the 2020 law, including being in compliance with non-discrimination law and having a safe and supportive learning environment free from discrimination and harrassment for all students.

Consequently, schools that have already adopted those policies listed by VSBA have contended they are in compliance with the 2020 law and don’t need to take further action.

Lexington City Schools, for example, stated last summer that “the law is clear that transgender students must be allowed to use the restrooms and locker rooms for the gender with which they consistently identify and assert. Any student may request to use a private restroom within the school. Lexington City Schools will follow the law.”

But Rahaman said VSBA’s policies are insufficient, and do not mention the word “transgender.” She also said that VSBA’s policies do not address eight areas identified by the commonwealth including dress code, student identification and facility usage.

VDOE’s policies are a guide for creating “affirming school environments,” she said, while VSBA’s policy updates are simply “an attempt to achieve legal compliance with state law.”

Gina Patterson, executive director for the Virginia School Board Association, did not respond to a request for comment.

“It has been disappointing to see some other school districts who have not obviously understood the importance of treating students with respect and dignity, and the privacy concerns that they may have,” Boysko said.

Rahaman said transgender and non-binary students exist everywhere in Virginia and that they deserve school boards who are going to affirm and support their identities on equality.

“We want teachers to be able to focus on teaching and so these model policies, and the guidelines are there to help teachers better understand how to create affirming classrooms and learning environments for students, so that they can focus on teaching things like math and science and history,” she said.

Boards may face legal consequences for not adopting model policies

The Department of Education was granted little enforcement authority by the 2020 law to penalize school divisions for not adopting the model policies.

James Lane, former superintendent of public instruction, said in a memo to superintendents dated last summer that nondiscrimination policies alone may be insufficient to meet the full scope of this legal mandate.

“Like all other mandates on local school boards resulting from General Assembly action, local school boards must fulfill this directive in order to be in compliance with state law,” Lane wrote. “Local school boards that elect not to adopt policies assume all legal responsibility for noncompliance.”

A spokesperson from the governor’s office did not immediately respond to an inquiry about school districts’ failure to adopt the model policies.

by Nathaniel Cline, Virginia Mercury

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