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ACLU of Virginia files suit against Virginia Department of Education on behalf of two transgender students

On February 15 the ACLU of Virginia and Freshfields Bruckhaus Deringer LLP filed two separate lawsuits against the Virginia Department of Education (VDOE) on behalf of two transgender students who are challenging the department’s 2023 Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools.

“VDOE’s 2023 model policies harm the very students they’re supposed to protect. They contradict both their legal mandate and the evidence-based best practices they’re supposed to reflect, and they have already resulted in discrimination that violates state and federal law,” said ACLU of Virginia Senior Transgender Rights Attorney Wyatt Rolla. “It’s a shame VDOE has put school districts between such a rock and a hard place by telling them to implement policies that could open them up to serious legal trouble.”

“Jane Doe,” whose identity is being withheld out of concern for her safety, is a high school student within the York County Public School system whom at least one teacher refused to address by her correct first name. Because of VDOE’s 2023 model policies, Doe’s school said it had to allow such mistreatment of transgender students. To escape being singled out and disrespected in the classroom, Doe was offered no remedy other than to rearrange her entire class schedule.

“Lily Loe,” whose identity is likewise being withheld out of concern for her safety, is a middle school student within the Hanover County Public School system who is not allowed to participate in a girls’ sports team. Even though she successfully qualified during tryouts, and her parents provided the documentation requested by the school board that should have established her eligibility, the board voted unanimously to exclude her from the team, citing VDOE’s 2023 model policies.

“When you look at the ways that VDOE’s model policies are hurting transgender and nonbinary students like our clients, it’s hard to avoid the conclusion that their authors were purposefully trying to erase gender-nonconforming students from the classroom,” said Andrew Ewalt, co-counsel and partner at Freshfields. “That flouts both existing nondiscrimination law and the Virginia law that directed VDOE to develop model policies in the first place.”

In 2020, Virginia lawmakers passed a law requiring VDOE to develop model policies ensuring safe and equitable treatment of transgender and nonbinary students in Virginia public schools, which the department did in 2021 after consulting with medical experts, educators, LGBTQ+ advocates, parents, and students themselves.

But after Gov. Youngkin was sworn into office in 2022, VDOE proposed revising its model policies, reversing its guidance on matters like name and pronoun usage, facilities access, and participation in sex-segregated activities. Unlike the 2021 model policies, the department’s final 2023 policies do not recognize LGBTQ+ students as a protected class, and focus not on the rights of students, but of parents.

“It doesn’t surprise me that an overwhelming number of people – many of them parents like me – sent comments to VDOE opposing these policies,” said parent Jill Doe. “VDOE’s model policies do the opposite of what they’re supposed to: they undermine my ability to parent my child, they undermine our school district’s ability to educate her, and most of all, they undermine my child’s health and wellbeing.”

VDOE’s model policies are required by statute to reflect evidence-based best practices for the inclusion of transgender students in schools. The model policies that VDOE issued in 2023 fail to comply with that mandate. No evidence supports calling transgender students by the wrong name, for example, or excluding them from sports teams: in fact, in 2018, a UT Austin study found that young people who are able to use their chosen name at school exhibit 59 percent less suicidal behavior. GLSEN’s 2021 National School Climate Study found that LGBTQ+ students who experience a hostile school climate – like one that prevents them from playing sports – have worse academic outcomes, lower school attendance, lower self-esteem, and higher rates of school discipline.

The lawsuits filed by ACLU of Virginia and Freshfields Bruckhaus Deringer call on York and Hanover County Circuit Courts to vacate VDOE’s 2023 model policies.

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