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.
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.
VDOE summarizes on page 7 “Related Laws” that apply to the Model Policies. Several of these summaries are either wrong or misleading.
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.
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.
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:
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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.
/s/ James A. Davids, J.D., Ph.D.