Virginia parents fight pro-transgender policies in public schools

Sarah Via, a mother of two children in Hanover County, Va., Public Schools, spoke out in 2019 when the district forced middle school girls to undress in the girls locker room in front of a boy who identified as transgender. Now, she is the lone parent in a lawsuit against the Virginia Department of Education, which wants to force schools across the state to adopt policies like the one in Hanover county.

Via said she believes community conversations need to happen around the subject instead of the state adopting blanket, far-reaching laws that “infringe on so many for so few.” But she said people hesitate to voice opinions on such a polarizing and uncomfortable topic, especially when supporters of transgender policies label disagreement as hate: “Just because I disagree with you doesn’t mean I hate you.”

The Family Foundation of Virginia filed the lawsuit late last month to challenge new statewide policies on transgender students in public schools. The suit argues the Virginia Department of Education steamrolled the policies through without addressing serious legal and constitutional concerns.

Virginia Gov. Ralph Northam, a Democrat, signed legislation in March 2020 ordering the state Department of Education to develop model policies on transgenderism and to require all 133 local school boards to adopt rules “consistent with or more comprehensive than” the models by the start of the 2021-2022 school year.

The model policies, released in January, require school administrators to keep a student’s gender identity confidential from other students, parents, or school personnel; make all dress codes gender neutral; eliminate or reduce the practice of segregating students by gender for activities; and open access to restrooms and locker rooms to all students based on gender identity. The policies also require schools to “allow students to use a name and gender pronouns that reflect their gender identity without any substantiating evidence.” They would compel all school staff to address students by their asserted name and pronouns. The policies do not address sports participation because it is governed by a separate state entity.

The department received more than 9,000 responses during the mandatory 30-day public comment period that started Jan. 4. Roughly two-thirds of the comments expressed opposition to the changes, including comments by The Family Foundation that the new policies would violate state and federal laws about parental rights, religious freedom, due process, equal protection, and free speech.

Despite those concerns, the Virginia Department of Education released a final version of the model policies on March 4 without substantive changes.

A few weeks later, Via, The Family Foundation, and its legal arm, the Founding Freedoms Law Center, sued the department for sidestepping a state law requiring it to address and respond to comments asserting the proposed changes violated state law or regulation. The suit asked the court to send the model policies back to the department for a fair and lawful hearing.

“We’ve seen this before,” said Victoria Cobb, president of The Family Foundation. She compared the process-oriented lawsuit to another her organization filed challenging a state agency that changed safety standards for abortions without following the state’s Administrative Process Act. “We took them to court, and we won,” said Cobb, adding state agencies have “a lot of authority to change and suggest guidance, but they don’t have the authority to do it in a lawless way.”

Cobb said this lawsuit is the first step in fighting the state’s overzealous effort to mandate transgender policies.

“This entire issue surrounding transgender students in schools has often had the effect of ignoring the legal, privacy, and bodily protection rights of the large majority of students in the schools,” said Cobb, adding the model policies are so broad they also encompass the free speech rights of students and teachers by compelling name and pronoun usage.

While The Family Foundation waits for the lawsuit to move forward, it sent a letter to every school board in the state alerting members of the litigation and encouraging them to take a “wait and see posture” to adopting the model policies.

When Via heard The Family Foundation was initiating a lawsuit, she said she didn’t think twice: “I want my name on it. If someone is willing to take a stand, I think more people would be.” She told me she has received pushback from outside lobbying groups, but the response from parents has been “overwhelmingly positive.”