Virginia Rules Commission objects to proposed transgender policies

Virginia’s Joint Commission on Administrative Rules objected Monday on a party-line vote to the revised transgender policies authored by Gov. Glenn Youngkin’s administration this fall.

“We are obligated as legislators to protect the rights and the well-being of all of our students, including those who are transgender,” said Sen. Jennifer Boysko, D-Fairfax, who, along with other Democrats, challenged the Youngkin guidelines. “Virginia absolutely can create a welcoming and inclusive and safe environment for all and do so respecting the law as we set forward.”

Republicans, however, pushed back against the move.

“What about the other student who’s not transgender, who is not comfortable in those environments?” asked Del. Roxann Robinson, R-Chesterfield.

Youngkin campaigned on parental rights, and this September, his administration released revised policies for transgender students that require parental approval for any changes to students’ “names, nicknames, and/or pronouns” and direct schools to keep parents “informed about their children’s well-being.”

While the new policies note that “schools should attempt to accommodate students with distinctive needs, including any student with a persistent and sincere belief that his or her gender differs from his or her sex,” they also specify that student participation in activities and athletics should be based on sex and that “students shall use bathrooms that correspond to his or her sex, except to the extent that federal law otherwise requires.”

Prior policies developed by Democratic Gov. Ralph Northam’s administration encouraged schools to prioritize student confidentiality around gender identity, required schools to use names and pronouns requested by students, and allowed students to use restrooms and locker rooms aligned with their gender identity.

Narissa Rahaman, executive director for Equality Virginia, said the commission’s decision was a sign lawmakers understand that Virginians have concerns about the proposed policies.

“I think today was a good first step in ensuring that trans, nonbinary youth still have protections in schools, and school boards have the opportunity to adopt a great policy like the 2021 policy, but we’ll see what happens and what next steps are,” she said.

Macaulay Porter, a spokeswoman for the governor, said Youngkin is not supportive of the commission’s decision. No additional remarks were provided.

Youngkin, attorney general expect schools to follow transgender policies

Republican lawmakers on Monday questioned whether the matter should be brought before the Joint Commission on Administrative Rules, a largely advisory body, when the new policies are still under review.

“What we’re looking at is nothing more than a model policy that’s still in the draft stages and not a regulation that is to be promulgated,” said Del. Chris Head, R-Botetourt. “I’m wondering why this is even coming before JCAR because it seems clear that this exceeds JCAR’s authority in every way that I can see.”

But Sen. R. Creigh Deeds, D-Bath, who chairs the commission, pointed to state code permitting the commission to review any agency’s proposed rules and regulations during the promulgation or final adoption process, and determine whether it is authorized by statute, complies with legislative intent or would have adverse economic impacts.

Even though JCAR has a “pretty limited” authority, he said, “I think we can look at this.”

Five Democrats voted in favor of filing an objection to the new policies, with four Republicans opposing. Three members were missing.

Under state code, the commission will now send a formal objection letter to the Virginia Register of Regulations and the Virginia Department of Education.

Continued public debate

Speakers spoke both in favor of and against the Youngkin administration’s proposed policies Monday.

Supporters emphasized parents’ rights.

“Parents must be part of the process, and that’s in the law, and it’s also widely agreed, and evidence backs it up,” said Secretary of Education Aimee Guidera.

Secretary of Education Aimee Guidera answers questions from Virginia’s Joint Commission on Administrative Rules on Dec. 19 about the proposed 2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools.

In contrast, opponents such as Equality Virginia and the American Civil Liberties Union said the changes would put Virginia’s vulnerable transgender and nonbinary students at risk for bullying and harassment. Both groups also claimed the proposed policies would violate state and federal laws, pointing to a 2021 federal appeals court decision that determined the Gloucester School Board had discriminated against a transgender student by barring him from using the boys’ restroom.

Del. Danica Roem, D-Prince William, the first transgender member of the General Assembly, questioned Guidera about the administration’s decision to include language in the proposed policies that does not follow federal and state laws.

“Why would you include that language if you were explicitly acknowledging that it does not follow federal and state law?” Roem asked.

Guidera responded, “We believe and hope that there will be changes in federal law.”

The proposed policies will become effective when finalized by the state superintendent of public instruction, according to the Virginia Department of Education. No timetable has been provided for when the policies would be completed.

The department has been reviewing the new guidance since the public comment period closed on Oct. 26. Virginia collected over 54,000 comments on the changes, eclipsing the 9,086 comments received for the Northam administration’s 2021 policies.

This story was updated with additional comments from the governor’s office.