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February 5, 2024

SB 68 and SB 723 were all but killed in the Virginia Senate, but Virginia High School League will still consider a blanket ban on trans athletes

RICHMOND, Va – Equality Virginia Advocates, the Commonwealth’s leading advocacy organization for lesbian, gay, bisexual, transgender and queer (LGBTQ+) equality, and the ACLU of Virginia commended lawmakers for effectively killing two bills that would prevent transgender athletes from participating in sports in Virginia and urged the Virginia High School League (VHSL) Executive Committee to reject a similar policy at its February 6, 2024 meeting.

“After voters in Virginia sent pro-equality majorities to both chambers of the general assembly in November, leaders in the legislative body – and in this case, the Senate Public Education subcommittee – are working to kill new, restrictive bans on transgender athletes’ participation in sports in Virginia. We’re grateful to these leaders in the subcommittee and to the Virginia High School League for opposing these harmful bills. This act of leadership is extremely important, especially as Attorney General Jason Miyares and the Youngkin administration’s Department of Education continue to push for new ways to single out trans athletes for discrimination,” said Narissa Rahaman, executive director of Equality Virginia Advocates. “The VHSL is the latest target of Miyares, Youngkin and their VDOE. We urge the VHSL to stay the course. The existing policy is working, and any change to it would be a political move, rather than an evidence-based conclusion. We must stand with transgender athletes in their simple goal to be treated fairly and be allowed to participate in athletics in Virginia.” 

“VHSL’s policies for transgender athletes have worked for over a decade,” said Breanna Diaz, Policy and Legislative Counsel for ACLU of Virginia. “Banning trans students from playing sports consistent with their gender identity violates federal law and guidance – and hurts cisgender students, too. Transgender athletes want to participate in school sports for the same reason as anybody else: to find a sense of belonging, be part of a team, and to challenge themselves. They deserve to do so free from discrimination and stigmatization.” 

The Virginia Senate Public Education subcommittee voted on Thursday February 1, 2024 meeting to pass by SB 68 (introduced by Sen. Peake) and SB 723 (introduced by Sen. Mulchi), effectively killing the legislation. The two bills will face a final vote this week in the Senate Education Committee to determine if they’ll be completely off the table this session. 

The Virginia High School League (VHSL) publicly opposed the bills, which would have impacted their current transgender athlete eligibility policy, during the committee hearing. VHSL’s Executive Committee will meet tomorrow, Tuesday, February 6, 2024, the first meeting since Virginia Department of Education (VDOE) Chief of Staff Jeremy Raley introduced a policy to rescind VHSL’s trans athlete eligibility policy and replace it with a blanket ban, which read:

“If a school maintains separate teams in the same sport for boys and girls during the school year, student-athlete participation shall be determined by biological sex and not gender or gender identity.” 

The Executive Committee, of which Raley is a member, moved the submitted revision to the February 6th meeting. VDOE released a model policy document last July rescinding and replacing its 2021 model policies laying out evidence-based, best practice approaches to address the needs of transgender students in Virginia’s public schools, which did not include athletics due to VHSL’s existing transgender athlete eligibility policy. VDOE and the Youngkin administration – notably, Attorney General Jason Miyares – have publicly stated their desire for this policy to be repealed and replaced with the policy moved to tomorrow’s meeting that would exclude transgender athletes.  

In 2014, VHSL created restrictive criteria that allow transgender students to appeal to play on sports teams aligning with their gender identity. Fewer than 50 appeals have been made for students to play under this policy, of which one was deniedAs recently as July 2023, VHSL Executive Director John D. “Billy” Haun to schools, superintendents, and school board members recommended VHSL’s policy  stay the same.

In October 2023, the Fourth Circuit Court of Appeals heard a lawsuit challenging West Virginia’s law banning transgender girls and women brought by an 11-year-old girl who had been  barred from trying out for the middle school girls’ cross-country team. During oral argument, a majority of the three judge panel appeared to believe the law violates constitutional and statutory prohibitions on sex discrimination. If the Fourth Circuit rules in favor of the transgender athlete, it would establish a binding precedent prohibiting trans athlete bans in Virginia, too.