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Youngkin’s restriction on trans students’ rights is probably illegal, experts say

The Washington Post logo The Washington Post 9/21/2022 Rachel Weiner
Virginia Gov. Glenn Youngkin (R) speaks with the media after touring a Loudoun County elections facility Tuesday. © Cliff Owen/AP Virginia Gov. Glenn Youngkin (R) speaks with the media after touring a Loudoun County elections facility Tuesday.

A directive from the administration of Virginia Gov. Glenn Youngkin (R) for public schools to restrict the rights of transgender students is either unenforceable or will be struck down in court because it appears to violate both state and federal law, experts and advocates said.

The model policies, released Friday evening, require schools to categorize transgender children by their “biological sex” when it comes to using the bathroom, locker room and other facilities and participating in activities. They also bar students from adopting a new name or pronouns without parental permission.

“Gov. Youngkin is trying to pick a political fight by attacking trans students, but his model policies are in conflict with recent court rulings,” said employment and civil rights attorney Joshua Erlich. “Discrimination against transgender individuals is illegal discrimination on the basis of sex.”

The directive, which does not go into effect until after a 30-day public comment period beginning later this month, says schools must comply with federal precedent and the Virginia Human Rights Act, but it does not explain how. A spokeswoman for the governor declined to answer specific questions about the policy, saying in a statement that it “requires that schools treat every single student with dignity and respect.” Some districts have vowed to resist it.

Recent federal court decisions have upheld protections for transgender people, including a 2020 U.S. Supreme Court decision, written by Trump appointee Neil M. Gorsuch, that determined that civil rights law barring sex discrimination covers transgender people.

In 2020, the U.S. Court of Appeals for the Fourth Circuit ruled that a transgender student could not be barred from using a boys’ bathroom. The U.S. Supreme Court declined to hear an appeal of that ruling last year.

Erlich represented a woman whose case recently led the Fourth Circuit to rule that gender dysphoria — the distress a person feels when their gender does not match their sex assigned at birth — is protected under disability law.

Virginia also has a Human Rights Act that bars discrimination in schools based on gender identity.

Youngkin’s policies include an admonition to treat transgender students “with respect, compassion, and dignity in the classroom and school environment.” But Eden Heilman, legal director of the Virginia chapter of the American Civil Liberties Union, said that’s not enough: “That’s not how the law works.”

Del. Danica A. Roem, a Prince William Democrat and the first openly transgender member of the Virginia House of Delegates, said she has told concerned parents to expect legal challenges.

“They do not have the authority to do what they are doing,” Roem said. “Whether you agree with what the governor wants to do in terms of the merits, or lack thereof, of his policy, or disagree with him, what we all have to agree on is the governor cannot break the law.”

Youngkin put forward the model policies — a version of which must be adopted by all of the state’s 133 school districts — under legislation passed two years ago, during a Democratic administration, that was meant to protect transgender students. The legislation called for the Department of Education to “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.”

Under then-Gov. Ralph Northam’s Democratic administration, schools were directed to respect a student’s “consistently asserted” gender identity. Few schools actually implemented policies in line with Northam’s model before his administration ended, leading to lawsuits from parents of trans children.

Youngkin’s policies say students can change their sex in official records if they have updated their birth certificates or other legal identification, but they do not say whether that would allow a transgender student access to any facilities conforming to their gender identity.

The Youngkin policies also say schools can separate student-athletes based on sex. But the 2020 Virginia law passed to protect transgender students specifically excluded athletics.

All Virginia public high schools are members of the Virginia High School League (VHSL), which has had its own trans-inclusive policy since 2014 and is a voluntary, nonprofit organization that does not answer to the governor’s office and the state legislature. Efforts by the legislature to force the league to allow home-schooled players or recognize robotics as a sport have failed. (The organization chose to include robotics in 2019.)

VHSL spokesman Mike McCall said the group was “still digesting” the model policies.

Jack Preis, a professor at the University of Richmond School of Law, said the language in the state law might be vague enough to allow the governor’s office to issue the policies, as courts generally defer to agencies on ambiguous statutes.

“If you know Youngkin was coming along … you would have written this with a lot more focus,” he said.

But he said the model policies probably will fail for other reasons.

For example, he said, it’s not clear that teachers would always be aware of a student’s “biological sex,” because of ambiguous names and clothing styles.

“Privacy rights are going to prevent many teachers from even knowing whether or not they are teaching a trans student,” Preis said.

Youngkin’s document does not define “biological sex” or address intersex children. It also does not mention students who identify as nonbinary, which is an option on U.S. passports and Virginia driver’s licenses.

“That’s a problem,” said Katrina Karkazis, a gender studies professor at Amherst College. “There are six to nine markers in the body that are sex traits and while some of those are commonly thought to be binary, many of them are not. … The question becomes which trait are you looking at in order to make a determination.” There is also scientific research indicating that gender dysphoria has biological roots, as the Fourth Circuit has noted. That is why discussion of transgender identity often refers to “sex assigned at birth,” Karkazis said.

The Youngkin administration said teachers have a First Amendment right to refuse to use students’ pronouns, citing a decision from a federal appeals court in Ohio that allowed a teacher to sue after he was reprimanded for refusing a student’s request to use her pronouns. But that case involved higher education, which analysts say makes it different.

“Freedom of expression under the First Amendment is much different in a college classroom than it is in a K-through-12 classroom,” said Suzanne Eckes, an education law professor at the University of Wisconsin at Madison. While pronouns are a new and “gray area,” she said, “there are plenty of cases that just show that First Amendment rights of teachers are strictly limited.”

Legal challenges in Virginia to Northam’s policy requiring teachers to use students’ pronouns rest on state religious freedom law, which offers broader protection than the U.S. Constitution.

An attorney for the Alliance Defending Freedom, a conservative Christian nonprofit backing those lawsuits, said their interpretation of the law would also call for accommodations for teachers who want to use trans students’ pronouns.

“Schools can provide accommodations for teachers on both sides,” said ADF senior counsel Tyson Langhofer. “The government can’t force somebody to speak a message they disagree with — that goes both ways.”

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