Re: Comments on Model Policies for the Treatment of Transgender

      Students in Virginia’s Public Schools (hereafter “Model Policies”)

Founding Freedoms Law Center (“FFLC”) is a public interest law firm headquartered in Richmond, Virginia. FFLC and its parent, The Family Foundation of Virginia (“TFF”), have supporters in most Virginia cities and counties. FFLC makes these comments on behalf of itself as well as its supporters.

1. Introduction

In Troxel v. Granville, 530 U.S. 57, 65-66 (2000), Justice O’Connor for a plurality of the United States Supreme Court reiterated the following principles that have guided the rights of parents over the education of their children for the past 100 years.

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interferences with certain fundamental rights and liberty interests.

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents “to establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child resides first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id. at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. . . . In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

The Model Policies proposed by the Virginia Department of Education (“VDOE”) violate these fundamental rights of parents by circumventing parental involvement in a pivotal decision affecting their minor children's care, health, education, and future. The Model Policies enable minor children, of any age, to transition socially to a different gender identity at school without parental notice or consent, and requires school personnel to enable this transition.  The Model Policies also prohibit personnel from communicating with parents about this potentially life-altering and dangerous choice if the parents have not agreed with the child’s wishes.  These Model Policies are flawed. The following concentrates on their legal flaws.

2. The Model Policies’ Legal Flaws

1. Several Descriptions of “Related Laws” Are Either Wrong or Misleading

VDOE summarizes on page 7 “Related Laws” that apply to the Model Policies.  Several of these summaries are either wrong or misleading.

• The description of the First Amendment is true in that it protects a person’s free speech and expression from governmental interference. It also, however, protects the free exercise of religion. Just as schools may not prevent students from expressing their identity, schools also may not prevent a student (or a group of students) from sharing their religious beliefs with other students. This sharing of religious beliefs, including God’s design for life and bodies, is not bullying but speech protected by both federal law (the Free Exercise and Free Speech clauses of the First Amendment and the Religious Freedom Restoration Act), and state law (the Virginia Constitution and the Virginia Religious Freedom Restoration Act). Moreover, any school policy that permits speech affirming one’s sexual identity, but not permitting rebuttal speech on the same subject, is content and viewpoint discrimination.
• The Fourteenth Amendment does guarantee citizens equal protection under the law. It protects all (not simply LGBTQ+) students from unfair and discriminatory school actions. Under the Fourteenth Amendment, specifically gendered washrooms must be limited to the designated gender. Boys should not be allowed to use washrooms and/or locker rooms designated for girls, and vice versa. Allowing some boys to use girls’ washrooms, and some girls to use boys’ washrooms is unequal treatment, thereby triggering the Equal Protection Clause.
• Title IX of the Education Amendments of 1972 is generally, as stated, a federal law that prohibits schools that receive federal financial assistance from limiting or denying a student’s participation in any school program on the basis of sex. The following statement in the Model Policies (that Title IX “may be understood to prohibit discrimination . . . based on . . . sexual orientation, and gender identity or transgender status”) is wrong.  On January 8, 2021, the U.S. Department of Education’s (“USDOE”) Office of General Counsel issued an opinion as to whether the Court’s interpretation of  “sex” in Bostock v. Clayton County, 104 S. Ct. 1731 (2020) affected the interpretation of “sex” for purposes of Title IX.  USDOE’s lawyers answered “no.” See https://www2.ed.gov/about/offices/list/ocr/correspondence/other/ogc-memorandum-01082021.pdf?bcs-agent-scanner=4c930bc7-a8a1-3442-907a-a81eb781dfea at 2.  Regarding whether Bostock applied to school  washrooms, locker rooms, and other sex-segregated programs addressed under Title IX, DOE’s lawyers wrote that Bostock does not apply because (1) Bostock applies only to Title VII of the Civil Rights Act, not Title IX; (2) the ordinary public meaning of “sex” at the time of Title IX’s enactment was biological sex, male or female, not transgender status or sexual orientation; and (3) the Department’s regulations recognizing the male/female biological binary carry interpretative authority because they were the product of uniquely robust and direct Congressional review. Id. at 6.
• The Model Policies’ description of the Family Educational Rights and Privacy Act (FERPA) on page 7 again is somewhat accurate, in that FERPA is a federal law that, with limited exceptions, protects the privacy of student educational records without the written consent of parents. The following two sentences in the Model Policies (that FERPA prohibits the improper disclosure of personally identifiable information, which includes gender identity or sexual orientation) is, however, very misleading if interpreted as applying to parents. In fact, according to USDOE’s Parents Guide to the Family Educational Rights and Privacy Act: Rights Regarding Children’s Educational Records, FERPA gives parents the right to review their child’s educational records, and “generally requires schools to ask for written consent before disclosing your child’s personally identifiable information to individuals other than you.” See (https://www2.ed.gov/policy/gen/guid/fpco/brochures/parents.html) (emphasis added). In other words, FERPA gives parents the right to access their child’s educational records, and it provides NO authority for the school to keep these records from parents. Hiding school records from parents who may not support their child’s gender transition is directly against the spirit and intent of FERPA, which is designed to give parents unfettered access to their child’s school records.

2. The Model Policies Violate Constitutionally Protected Parental Rights

The Model Policies are replete with statements with which few can argue, such as VDOE’s commitment to “ensure a positive, safe, and nurturing learning environment for all students” (p. 8), and “schools should provide a safe educational environment for all students and treat all students with dignity and respect . . .” (p. 10). Treating students differently (such as giving rights without merit to certain students that are denied others) is rightfully prohibited, and all complaints of discrimination, harassment, and bullying should be investigated, as provided in the first Model Policy on page 10. Regarding student privacy, certainly a student suffering from gender dysphoria or a medical condition that would not put others at risk should be granted confidentiality from other students as well as most staff/faculty, but these conditions must NEVER be kept from parents. Therefore, the statement on page 11 that “regardless of the circumstances, the school should support the student’s need for privacy and not disclose a student’s gender identity to other student or parents” is directly contrary to proper authority and law, as is the second paragraph of the Model Policy found on page 12, which directs school personnel not to disclose a student’s transgender status to parents.

As noted above in the Introduction, parents have a constitutionally protected fundamental right to make decisions concerning the care, custody, and control of their children.  One of the areas most needed for parental instruction and control is a child’s sexuality. The sensitivity of this area was recognized by the General Assembly in Virginia Code § 22.1-207.2, which requires schools to distribute to parents a summary of the family life curriculum (which, per Virginia Code § 22.1-207.1 includes human sexuality, human reproduction, dating violence and sexually transmitted diseases), permits parents to review this curriculum, requires the school to give notice that parents “have the right to excuse their child from all or part of family life education instruction,” and encourages parents to provide “guidance and involvement in the instruction of the students.” This statute is, quite frankly, an excellent model for VDOE to follow with respect to transgender students, involving parents in the discussion and allowing the parents to opt out their child at any time.

The Model Policies similarly violate the rights of Virginia parents under Virginia Code § 1-240.1. This law states in full: “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” (Emphasis added). The note for this statute states that “it is the expressed intent of the General Assembly that this act codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, . . . as it relates to parental rights.” The Virginia Supreme Court’s discussion of parental rights states:

The relationship between a parent and child is a constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment. . . . Indeed, the Supreme Court of the United States has characterized a parent's right to raise his or her child as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, 530 U.S. at 65. Any statute that seeks to interfere with a parent's fundamental rights survives constitutional scrutiny only if it is narrowly tailored to serve a compelling state interest. McCabe v. Commonwealth, 274 Va. 558, 563 (2007); . . .” L.F. v. Breit, 285 Va. 163, 182 (2013). (Some citations omitted).

Applying the compelling state interest test dooms the Model Policies’ attempt to keep parents uninformed of their child’s quest to transgender.  Under this test, the Commonwealth must prove that its interest in helping a child transgender is “paramount,” “of the highest order,” and “vital” compared to the interest of the parents. See Little Sisters of the Poor v. Pennsylvania, 140 S. Ct. 2367, 2392 (2020).  The Commonwealth must also prove that there is no other narrower means to achieve the student’s transgender than by withholding information and deceiving the student’s parents. The school, in such an instance, usurps the role of the parent, and becomes the student’s protector and guide.

Such a role, of course, has additional due process dimensions. One of the major issues in a contested divorce is the fitness of a spouse to parent a child. If the parties cannot agree on the terms of parenting, an independent party (a judge typically) decides. Here, the school acts not only as a party, but also the judge, determining what information to give and what to withhold, as noted on page 13, which states that “school divisions will need to determine whether to respect the student’s request [regarding preferred pronouns], abide by the parent’s wishes to continue using the student’s legal name and sex assigned at birth, or develop an alternative that respects both the student and the parents.” See also page 15 pertaining to School Records, which allows schools “upon the request of a student or parent,” to use the new name and gender of the student on school records. Allowing a minor, deemed by state laws incapable of making legally binding decisions because of a lack of capacity, to make a decision concerning gender reflected on school records is again a violation of constitutionally protected parental rights.

3. The Model Policies May Lead to FERPA and Virginia Code Violations

As noted above on pages 5-6, FERPA is a federal law that, with certain exceptions not applicable here, protects the privacy of student records from persons other than students and their parents. In fact, FERPA provides a statutory right for parents to access their child’s educational records. See 20 U.S.C. § 1232g et seq.

On page 20 of the Model Policies, the authors state that when a student informs the school about his/her gender transition, the school should have a point-of-contact to “meet with the student (and parents/guardians if the parents/ guardians are affirming of the student’s gender identity) to develop a plan to accommodate the student’s needs and requests.” The authors further state that a template may be helpful to address matters like names, use of pronouns, privacy concerns, communication plans, student records, and access to facilities and activities. The authors obviously recognize the need for documentation.

Stating that information will be shared with affirming parents implies that this information may not be shared with non-affirming parents. Assuming document(s) are created and then not provided to the parents upon their request, the school commits a FERPA violation. Withholding these documents is also a violation of Virginia Code § 20-124.6, which states that a parent shall not be denied access to his/her child’s academic record.

4. The Model Policies Will Likely Lead to Violations of Religious Liberties

The authors of the Model Policies astutely state on page 19 that “students and staff each have their own unique religious and personal experiences, views, and opinions.” Many of these student and staff positions on transgender issues are based on sincerely held religious beliefs that compel the students, staff and faculty members to act in ways consistent with their religious beliefs. A few examples illustrate the potential constitutional and statutory violations:

• A Christian female teacher at the end of the day sees one of her students is depressed and asks what’s wrong. The student responds that she is questioning her gender. The teacher then tells the student that as a Christian, she believes that God created men and women perfect (Genesis 1), but that sin entered the world as a result of human disobedience to God (Genesis 3). As the result of sin, there is much confusion in the world but there is spiritual redemption through the sacrifice of Jesus Christ. The teacher then asks whether the student has talked to her parents about her gender questioning, to which the student says no. The teacher then says that the Bible gives parents the responsibility of training and educating children (Deut. 6:7; Prov. 22:6), and that children must obey their parents (Ephesians 6:1-4). Soon after this after-school meeting, the school learns of it and, after questioning the teacher, imposes discipline for failing to follow the school’s transgender policy. Subsequently the teacher files a lawsuit for the school’s violation of the teacher’s free exercise of her religion (First Amendment), her right of conscience (Virginia Constitution § 16), the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1 et seq.), and the Virginia Religious Freedom Restoration Act (Virginia Code § 57-2.02 et seq.), which requires the school to prove by clear and convincing evidence that its action was “essential” to accomplish its compelling state interest. The teacher would add to this formidable complaint a claim for violation of her free speech rights.
• Joy, a high school freshman, must shower after each gym class. On the first day of the new semester, her new gym class of boys and girls ends with Carla, who has a male physique, following her into the girls locker room. After Carla disrobes and walks to the shower room, there is no mistaking the male anatomy. Joy in a later meeting with school officials, says that she is a Christian, and therefore must act and dress modestly (1 Timothy 2:9-10), something impossible to do with Carla in the locker room. The school refuses to accommodate her because this may lead to emotional trauma for Carla. In the subsequent lawsuit, Joy will claim denial of her free exercise of religion and a violation of her privacy.

*     *     *     *     *

For these reasons, the Model Policies have legal flaws that will inevitably lead to otherwise avoidable litigation. The Virginia public school community and taxpayers would benefit if VDOE reconsiders the Model Policies and seeks more diverse community opinions, including those of parental rights and religious liberty advocates.  A new, diverse committee likely would create model policies that better balance the needs of transgender students with parental rights, the constitutional rights of school faculty, staff, and students, and the community at large.

                                                                      Sincerely,

                                                            /s/ James A. Davids, J.D., Ph.D.

                                                                      General Counsel

                                                            jim@foundingfreedomslaw.org