RICHMOND – Senate Democrats on Thursday voted down a Republican proposal that would have weakened a new law that grants nonbinary and transgender students more rights and protection in Virginia’s public schools.
The legislation, sponsored by state Sen. Travis Hackworth, R-Tazewell County, aimed to remove the requirement for public school divisions to follow the Virginia Department of Education’s “model policy” for dealing with the aforementioned students, essentially leaving it up to individual school districts to decide whether they want to adopt the guidance. It failed in the Senate Education and Health Subcommittee on Public Education by a 2-1 party-line vote.
A Democratic-controlled General Assembly had passed legislation in 2020 ordering the VDOE to create
School boards are elected by the parents of the students, and parents should have a say in what policies go into their schools, Hackworth said. “Whether it’s a Republican governor or a Democratic governor, I feel like these decisions should be handled by the localities because they vary very differently across the commonwealth.”
The current VDOE policy allows the use of name and gender pronouns students identify with, and it permits students to use restrooms and locker rooms that correspond with their gender identity. In addition, the guidelines are mandating schools to let students participate in gender-specific programs or activities that correspond with their gender identities, including physical education or overnight field trips.
Several Virginia school boards – many of them in more rural and conservative areas of Southwest and Southside Virginia – have since pushed back against the changes. But some faith-based lawsuits that tried to reject the law have failed in court, including in Lynchburg, where a Circuit Court judge in July dismissed a challenge to the new policies.
And on Thursday, state Sen. Mark Peake of Lynchburg – the only Republican on the committee weighing Hackworth’s proposal – wondered out loud if the administration of newly elected Gov. Glenn Youngkin could simply direct the VDOE to rescind the policies.
Todd Gathje with the Family Foundation of Virginia told the panel that Hackworth’s measure was simply “a clarification bill intended to strike the mandate,” which he said conformed with the ruling of the Lynchburg Circuit Court. “These are merely guidance, or model policies, and you cannot force those on a local governing body,” Gathje said, adding that such policies should be handled at the local level. “All we are asking is that the language shows that it is the local school divisions’ ability to decide whether to adopt certain aspects of these policies. The bill doesn’t repeal any of the criteria, it just merely addresses the mandatory aspect of it,” he said.
Sarah Via, a mother of two children in the Hanover County school district and a plaintiff in one of the lawsuits against VDOE, said that she took one of her children out of public school this year because of the guidelines. “It is my opinion that there is no better governing body than the school board, because it is the closest to the voters and the parents that they affect. I ask you to respect the voters and the sovereignty of local communities to govern themselves,” she said.
And Tom Intorcio, associate director with Virginia Catholic Conference, said that the VDOE policies have created an unfunded mandate for schools related to retrofitting school bathrooms in order to accommodate transgender students. He cited Stafford County, where the school board had considered the policies even before the new statute was enacted last year.
“In Stafford County, this unfunded mandate totalled $2.18 million, and that was not immediately presented in the context of discussion, the parents didn’t know about that,” Intorcio said, adding that this amount might not be an issue for school boards in the more affluent counties in Northern Virginia. “But other school boards, for example rural and small town Virginia, if they are looking at a retrofit for $2.18 million, that could be a very expensive hit for those school boards. That’s why local input would be tremendously valuable for the benefit of parents, teachers and students,” Intorcio said.
But Hackworth and supporters of his proposal faced strong opposition from advocates of trans rights that had lined up to speak outside the meeting room at the state Capitol’s Pocahontas Building.
“This bill would open the state up to costly litigation for violating state and federal law that prohibits non-discrimination on the basis of gender identity,” said Breanna Diaz, legislative
counsel with the ACLU of Virginia. “Furthermore, trans students have the right to be supported for who they are, and to have full access and participation to everything schools have to offer. It is critical that we stand with transgender students and tell them that they have the right to thrive and to be authentically who they are,” Diaz said.
Allison Gilbreath, policy and programs director at Voices for Virginia’s Children, said that the VDOE model policies have already proven to work. “These policies help to create a positive and affirming environment for all students, and it shouldn’t matter if the student lives in Richmond City or in Southwest Virginia,” she said. “Eliminating the requirement for school boards to adopt these policies would not only harm trans students but also make educators and administrators’ jobs much more difficult.”
About 27% of students have increased their anxieties since the pandemic, and one in three children are currently struggling with their mental health, Gilbreath said. “These numbers are for the general population, and they are almost double for our transgender youth.”
Ryan Slevin, a former public school teacher and senior director of Learning & Development in Richmond, told the committee that transgender and nonbinary students, who are subjected to harsh and unsupportive school environments, are more likely to experience mental health struggles, including anxiety, depression and suicidality.
“Trans-affirming policies literally save kids’ lives,” said Slevin, who has a 12-year old transgender child, Phoenix. “The VDOE model policies are designed to protect my child and to send a message to Phoenix that they deserve a safe place to learn and grow, and isn’t that what we want for our kids, for all children?” Slevin said.
Vee Lamneck, executive director of Equality Virginia, said that Hackworth’s bill is not just harmful to transgender students, but that it makes the jobs of school teachers and administrators harder and more difficult, because the VDOE policies were designed to help them implement Title IX of the federal Education Amendments of 1972, which protects people from discrimination based on sex in education programs.
“These model policies are nothing new. Every school is supposed to create a learning environment that is free from discrimination, and this guidance helps to provide that,” Lamneck said. “This guidance must continue to be adopted by school boards across the commonwealth so that students, no matter where they are, whether they are in Botetourt or Winchester, can access the same level of education and graduate on time with their peers.”
For state Sen. Ghazala Hashmi, D-Chesterfield County, the committee chair, Hackworth’s proposal struck a nerve. “We’ve heard some folks say that small communities that don’t want to adopt this policy shouldn’t have to do it, but trangender students live in small communities as well,” she said.
The VDOE guidelines are designed to affirm both state and federal guidelines to prevent discrimination and to create a safe and hospitable learning environment for every child, Hashmi said. “We put a lot of thought and a lot of work into crafting the policy, getting it supported and finally getting it past as we did last year. And I think we need more time to see it roll out effectively, to have our schools work to make sure they are supporting children.”
Hashmi said she was adamant that Virginia gives trans students – and all students – “the kind of support, nurturing and resources that they truly deserve.”
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