Update on the Status of the 2023 VDOE Model Policies

NEW: We published a position statement that provides insights into federal and state protections for transgender and nonbinary students. We encourage you to send it, along with a personal note from you sharing your concerns, to your school superintendent and school board.
More on the position statement here

Updated on Tuesday, 7/18: the Youngkin administration's VDOE ignored public opposition & greenlit 2023 model policies that will harm & endanger trans youth. See our press release here.

In September 2022, Governor Youngkin’s Virginia Department of Education (VDOE) proposed withdrawing the 2021 model policies for the treatment of transgender students in Virginia's public schools and replacing them with new model policies. The proposed model policies sought to erase transgender and nonbinary youth from schools, creating a hostile and potentially dangerous environment. On July 18th, Youngkin’s VDOE finalized its 2023 model policies.

The 2023 model policies are a significant departure from the 2021 model policies. The 2021 model policies were created under the Governor Northam VDOE after the General Assembly passed a law in 2020 directing VDOE to develop evidence-based best practice model policies on the treatment of transgender and nonbinary students. The 2021 model policies are trans-affirming and were created in collaboration with various stakeholders, including parents, teachers and transgender students. All Virginia public schools were required to adopt policies consistent with or more comprehensive than the 2021 model policies by the 2021-2022 school year, but not all school districts did. And now, the current VDOE under Governor Youngkin has replaced the 2021 model policies with new policies that ignore both the law and evidence-based best practices. Instead, the 2023 model policies seek to impose harmful, anti-trans practices on Virginia’s young people.

On July 18, 2023, the Youngkin's VDOE released the final 2023 model policies, ignoring opposition from the majority of Virginians. However, these harmful policies will not be implemented by localities until school boards adopt them.

If you support transgender and nonbinary youth, one step you can take right now is to sign up for the ACLU-VA newsletter and take the Pride Pledge to receive updates on the model policies and action opportunities. We need your help to continue to make it clear that an overwhelming number of Virginians oppose these transphobic policies.

Schools Are Required to Not Discriminate Based on Gender

Is your school board considering adopting the 2023 VDOE Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools (“2023 Model Policies”)? If adopted, the 2023 Model Policies will result in transgender and nonbinary students facing increased bullying, harassment, and discrimination in the very place that should be a safe environment – their schools.

The 2023 Model Policies cannot & do not change the obligations of school boards under existing federal & state law. In Virginia, as well as under federal law, students are protected from discrimination on the basis of gender identity. If your school board is considering the 2023 Model Policies, you can provide your school board members with valuable information. The below ACLU position statement provides insights into federal and state protections for transgender and nonbinary students that should be considered before taking action. We encourage you to send it, along with a personal note from you sharing your concerns, to your school superintendent and school board.

This letter is not legal advice, nor does it create an attorney-client relationship with the ACLU of Virginia or any other attorney. Nor do we have the ability to answer any questions about specific school board actions. The letter is intended to outline our position of why we believe the 2023 Model Policies are contradictory with laws that expressly protect the rights of transgender and nonbinary people.

The ACLU of Virginia is keeping a close eye on the actions of school boards across the Commonwealth. If you send the letter to your school board, we’d appreciate you letting us know by sending a copy of the letter to protecttranskids@acluva.org. Again, this is a tool to help us track what is happening across Virginia and we are not able to respond to questions or requests for assistance sent to the email address.

Download the position statement here.

Transgender and nonbinary students have every right to be safe in school and we will continue to monitor and fight for the rights of these students against harmful policies like the 2023 Model Policies.

FAQs for parents & students

More info on bathroom access, sports participation, and affirming names/pronouns

"FAQs for students & parents about the VDOE's 2023 model policies"

1.Do the 2023 model policies allow school staff to deadname and misgender me?

The 2023 model policies require school staff to only use the name on a student’s official student record or nicknames commonly associated with it, and to use the pronoun associated with the sex that is on their official student record. Students 18 years or older or a parent/guardian can submit written instruction to school personnel instructing school staff to use a student’s affirming name and pronoun if different than those in the official record.

However, even when the official record has been updated or a student or parent/guardian submits the written instruction, the 2023 model policies allow staff to disregard a parent’s/guardian’s wishes and not use the student’s affirming name and pronoun based on their personal or religious beliefs.

2.Do the 2023 model policies prohibit me from accessing restrooms consistent with my gender identity?

The 2023 model policies suggest school districts may prohibit transgender youth from accessing restrooms consistent with their gender identity. However, the 2023 model policies also recognize that school districts are bound by Grimm v. Gloucester Cnty. Sch. Bd., a case in which the Fourth Circuit Court of Appeals struck down a school board’s discriminatory restroom policy and held that Gavin Grimm, a transgender student, must be permitted to use the restroom that aligned with his gender identity.

Federal and state law recognize transgender youth have the right to use the restroom and other gendered facilities consistent with their gender identity. Students and parents should work with school administrators and staff to ensure those rights are respected.

By prohibiting transgender youth from accessing restrooms consistent with their gender identity, the 2023 model policies place school boards at risk of violating the law.

3.Do the 2023 model policies prohibit transgender youth from playing on school sports teams?

The 2023 model policies suggest school districts may prohibit transgender youth from playing on sports teams consistent with their gender identity. However, the 2023 model policies also recognize transgender youth may participate in sports. In Williams v. Kincaid, the Fourth Circuit Court of Appeals ruled that “gender dysphoria” meets the definition of a disability under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination and ensures equal opportunities for persons with disabilities in public schools, including athletics. The 2023 model policies recognize that school districts are required to offer “reasonable modifications” of athletic participation policy to qualifying transgender athletes.

Other federal and state law also recognize transgender youth have the right to participate in school sports teams consistent with their gender identity. Students and parents should work with school administrators and staff to ensure those rights are respected.

Moreover, the Virginia High School League (VHSL) provides a transgender participation policy that all VHSL members must comply with.

By prohibiting transgender youth from playing on school sports teams consistent with their gender identity, the 2023 model policies place school boards at risk of violating law as well as their membership to VHSL, if applicable.

If you are a trans student - or their parent - who lives in a district that has adopted the 2023 model policies and is being harmed by them (for example, by being denied affirming restroom access, teachers refusing to use your affirming name or pronoun, threats of forced outing, or being blocked from participating in athletics), we want to hear from you.

You can submit a legal intake here.

Learn more: Trans Resiliency in the Classroom Webinar

FAQs for educators & school staff

More info on forced outing, affirming names/pronouns, and GSA sponsorship

1.Do the 2023 model policies require me to forcibly out a student to a parent or guardian if a student tells me they are transgender or non-binary? What if I notice that a student goes by a name and pronouns that are different than what is on their documents?

The 2023 model policies do not require school staff to forcibly out students who share with you or others that they are transgender or non-binary. The model policies only address what training and guidance districts may offer to teachers on this topic.

However, the 2023 model policies do require school staff who provide counseling services to obtain parent or guardian consent before the school staffer may offer counseling services on gender or gender identity to a student. In practice, attempts to obtain consent may lead to forced outing and trans and non-binary students may not seek mental health support out of fear of being outed.

2.Do the 2023 model policies require me to deadname or misgender students?

The 2023 model policies require school staff to call a student by the name on their official student record and the pronoun associated with the sex on that official record. The official student record may be updated by a student 18 or older or by a parent/guardian who submits documentation showing a legal change of name or sex. Additionally, students 18 or older and parents/guardians can submit written instructions for school personnel to use a student’s affirming name and pronoun.

3.Do the 2023 model policies prohibit me from sponsoring student-organized clubs like Gay Straight Alliance or Gender and Sexuality Alliance (GSA)?

The 2023 model policies do not prohibit public school staff from sponsoring GSAs. The federal Equal Access Act (EAA) requires high schools that receive federal funding to treat student clubs, including GSAs, the same as other clubs. That means if your high school allows students to form other student clubs, your high school cannot prevent you from forming a GSA. GSAs must also be provided the same resources and access to school facilities as other clubs.

Finally, your high school cannot uniquely target GSAs with parent permission requirements. If your school board does have a permission requirement policy, the policy must be equally applied to all student clubs.

Learn more: Trans Resiliency in the Classroom Webinar for Educators

What the policies do

The 2023 policies seek to erase transgender and non-binary youth from the classrooms, creating a hostile and potentially dangerous school environment.

trans rights colored background of azure blue, white, and pink, with a screenshot of Youngkin admin's anti-trans model policies that read: "Virginia Department of Education. 2022 Model Policies on the privacy, dignity, and respect for all students."

The 2022 model policies will cause actual harm to transgender and nonbinary students by creating an unsafe education environment. They:

Prohibit school districts from protecting students against forced "outing" to their parents before they are ready and when it may not be safe;
Prevent access to restrooms consistent with a student’s gender identity, in direct violation of federal law (Grimm v. Gloucester);
Erect additional barriers to trans and nonbinary students accessing counseling services;
Prohibit teachers and school staff from calling students by their affirming names and pronouns unless there is written permission from a parent; and
Allow teachers and staff to disregard parent's written instruction and misname and misgender students in the classroom based on their own personal beliefs, permitting public employees to use government speech to discriminate against trans and nonbinary students;
Create facilities and sports policies that prohibit students from accessing and/or participating in activities consistent with their gender identity.

The stakes are high. If school boards adopt these policies, transgender and nonbinary students could face increased bullying, harassment, and discrimination in schools and place their safety at risk in unsupportive home environments.

What to do now that VDOE has finalized its 2023 model policies

Below are a few things you can do to support trans and nonbinary youth now.

water-colored background of blue, white, pink with a dialogue box with the following text "trans and nonbinary youth have the support of this parent."

Regularly attend local school board meetings.

You can start to organize and familiarize yourself with your school board by attending school board meetings.
You can find out when your school board next meets and how to sign up for public comment via Equality Virginia’s School Board Policy Tracker.
You can vote for school board members that believe in providing safe, affirming school environments for all students.

Connect with trans and LGBTQ+ students.

If you are a trans or queer student, or if you are the parent/guardian of a trans or queer youth attending school in Virginia, Pride Liberation Project, He She Ze and We and Side by Side Virginia provide resources and safe & affirming spaces for youth.

Resources:

Check out ACLU’s “LGBTQ Students: Letters for When You’re Fighting Discrimination”
Check out ACLU’s “How to Start a Gay-Straight Alliance (GSA)”