The Family Foundation is suing the Virginia Department of Education (VDOE) over its Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools. The model policies took effect March 6, 2021, and school boards must adopt policies consistent with the model by the beginning of the 2021-2022 school year. However, the Family Foundation says there are legal problems with the policies and that the VDOE did not properly address comments made during a legally required public comment phase.
“After putting these on hold, we are asking the court to send this ‘guidance document’ back to VDOE to correct the legal errors it made when adopting them and to remove the numerous constitutional violations created by these Model Policies,” a Family Foundation press release states. “In addition to ignoring our legal objections during the public comment process (which they are required by law to specifically address), these Model Policies trample all over fundamental rights, including free speech, religious exercise, bodily privacy, due process, equal protection, and parental rights.”
Model Policies Overview
The model policies are a response to legislation passed by the 2020 Virginia General Assembly. According to a December memo from Superintendent of Public Instruction James Lane, the model policies address compliance with nondiscrimination law, maintaining supportive learning environments free of harassment, prevention of bullying, students’ records, privacy, dress codes, and sex-specific school activities.
“School staff shall, at the request of a student or parent, when using a name or pronoun to address the student, use the name and pronoun that correspond to their gender identity,” the model policies state.
“Schools shall eliminate or reduce the practice of segregating students by gender to the extent possible. For any school program, event, or activity, including extra-curricular activities that are segregated by gender, [School Division] shall allow students to participate in a manner consistent with their gender identity,” another section of the model policies states. “Access to facilities such as restrooms and locker rooms that correspond to a student’s gender identity shall be available to all students.”
Sports are covered by policies at the overseeing organizations, like the Virginia High School League, which already has a policy allowing students to play in leagues based on their gender identity.
The Family Foundation announced the lawsuit through a new legal wing of the organization, called the Founding Freedoms Law Center. In a press conference of the lawsuit yesterday, Family Foundation President Victoria Cobb said over 9,000 public comments were made, with roughly two-to-one opposition to the new guidelines.
“Some comments addressed the concerns around bodily privacy for young girls. Some noted constitutional concerns, either around parental rights, or even religious freedom. It’s our contention that these comments were not specifically addressed as is required by the Virginia process,” Cobb said.
She said the lawsuit was filed against the VDOE and Secretary of Education Atif Qarni on behalf of the Family Foundation and Hanover parent Sarah Via, who were among those offering public comments.
“As a mom of two children attending Virginia public schools, this policy concerns me because it usurps and undermines my authority, my parental authority over my children,” Via said in video of the press conference.
Via said she has a middle-school aged daughter who wants to be modest in contexts like bathrooms and locker rooms.
She said, “How is it appropriate for biological males and school admin to take that choice from her? This has occurred in Hanover County Public Schools already, and the girls were forced to undress in front of a biological male against their will and they feel as if the school system and trusted adults failed them.”
“We maintain our concern that these guidelines erase basic parental rights and protection of bodily privacy and safety rights for even our youngest students,” Cobb said. “The Constitution of Virginia ensures that the fund right of parents to raise their children in accordance with their own beliefs does not simply get erased simply because the state of Virginia chooses to dismiss those rights to fulfill its own ideological agenda.”
The lawsuit requests the court to cancel the effective date of the model policies’ guidance and send it back to the VDOE for modification to address the legal concerns. In addition to concerns about the legal process and the rights Cobb described, the lawsuit also challenges the evidence supporting the guidelines, and argues that non-transgender students are left out of consideration.
“Without any consideration of the impacts of the policies on the roughly 99 percent of non-transgender students, these Model Policies cannot possibly be ‘evidence-based,’ let alone ‘best practices,'” one section of the lawsuit argues.
Response to the Lawsuit
VDOE Director of Media Relations Charles Pyle told The Virginia Star, “The department is aware of the lawsuits filed in response to the guidance document and is now reviewing them, but at this time the department has no further comment.”
The announcement was made the day before March 31, the International Transgender Day of Visibility. In response to the lawsuit, FCPS Pride, a LGBTQ advocacy organization for Fairfax County Public Schools, called the Family Foundation “the largest and loudest anti-LGBTQ organization in Virginia.”
“The members of FCPS Pride, including parents, family members and educators, are appalled and saddened that The Family Foundation of Virginia is launching this assault on the well-being of transgender and gender-expansive children,” FCPS Pride co-president Robert Rigby said in a press release share with Blue Virginia.
Rigby said, “We have been thrilled and reassured with the level of support that has been developing within Fairfax County Public Schools, and we have confidence in our leaders that these scare tactics will not cause them to hesitate to welcome trans and gender-expansive students in our schools.”
In the press conference video, Chief Counsel Jim Davids suggested that the guidelines are like experimenting on children. He said, “We want to avoid generations from now them looking back on our time and saying, ‘What did we do with these transgender students who could have avoided this simply by being left alone?’ And that’s why we think, frankly, there is considerable wisdom in the oath that’s taken by physicians: do no harm.”
– – –