The new anti-trans student policies being pushed by the Youngkin administration will almost certainly be challenged in court, and it’s not likely that the governor will prevail, given current state and federal law.
“They do not have the authority to do what they are doing,” said Del. Danica Roem, a Prince William Democrat and the first openly transgender member of the Virginia House of Delegates.
“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,” Roem told The Washington Post.
The Virginia Department of Education, at Youngkin’s direction, released rewritten “model policies” for the treatment of transgender students last week that would roll back equal protections for trans students enacted under former Gov. Ralph Northam last year.
These “model policies” define a transgender student as “a public-school student whose parent has requested in writing, due to their child’s persistent and sincere belief that his or her gender differs from his or her sex, that their child be identified while at school.”
The proposed policies state that the legal name and sex of a student can’t be changed “even upon written instruction of a parent or eligible student” without an official legal document or court order.
And then this kicker: teachers and other school officials can only refer to a student by their pronouns associated with their sex at birth.
And the adults employed and paid by your tax dollars also don’t have to refer to a student’s preferred names regardless of paperwork if they feel doing so “would violate their constitutionally protected rights.”
Recent court decisions, including a 2020 United States Supreme Court ruling written by Trump appointee Neil Gorsuch, and another 2020 ruling from the Fourth Circuit Court of Appeals in a Virginia case, have upheld protections for transgender people and trans students.
In the Virginia case, the appeals court ruled in favor of former Gloucester County high school student Gavin Grimm, deciding that restroom policies segregating transgender students from their peers are unconstitutional and violate Title IX, the federal law prohibiting sex discrimination in education.
The Supreme Court declined to take up the Grimm case on appeal.
“Gov. Youngkin is trying to pick a political fight by attacking trans students, but his model policies are in conflict with recent court rulings,” employment and civil rights attorney Joshua Erlich told the Post. “Discrimination against transgender individuals is illegal discrimination on the basis of sex.”