Virginia Wants to Force School Employees to Harm Trans Students

Sean McDonough

Sean McDonough is a student at Harvard Law School and a member of the Labor and Employment Lab.

Youngkin’s Anti-Trans Policies

Virginia Gov. Glenn Youngkin’s Department of Education drew condemnation from transgender people and their allies last month when it released its “2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools.” The policies, which are expected to go into effect in late October after a comment period, require school personnel to defer to the parents of a child in choosing what name and pronouns to use for the child. Effectively, this means that only trans students with affirming homes can hope to have their gender affirmed by school personnel. Youngkin’s policies also require all trans students to use single-occupancy bathrooms instead of public bathrooms aligned with their gender. The policies do clear harm to trans students and also violate the rights of school employees by forcing them to inflict harm on students.

Youngkin’s policies disregard established medical guidelines for trans children. The World Professional Association for Transgender Health Standards of Care dictate that “disaffirming behaviors” like “choosing not to use [a] youth’s identified name and pronouns” are “ineffective and are associated with increases in mental illness and poorer psychological functioning.” This is an acute concern for children who do not come from affirming homes, as LGBTQ+ youth with at least one affirming adult in their lives were 40% less likely to report a suicide attempt.

Many Virginians have protested Youngkin’s policy changes. Thousands of students at more than 90 schools across Virginia participated in walkouts to oppose the changes and community organizations have hosted similar rallies to show “the community value[s] transgender and gender-expansive students.” Some local government bodies, like Alexandria’s City Council and School Board, have vowed not to adopt anti-trans policies, emphasizing the need to “protect[] students from discrimination.”

The backlash to the policies has largely focused on the harm they will do to trans students. However, they are also an attack on the rights of workers in Virginia’s public schools.

Employees’ Rights in Schools

Virginia’s policy changes are part of a nationwide anti-trans push by state governments, but Youngkin’s administration was somewhat subtler than other states in restricting employees’ rights. Florida’s infamous “Don’t Say Gay” law has been lambasted for explicitly prohibiting some teachers from discussing gender identity or sexual orientation. Youngkin has not announced comparable restrictions, but his policies still stifle the rights of Virginia’s school employees. By forcing them to deadname and misgender trans students from non-affirming homes, Youngkin is putting school personnel in an impossible position: they can either follow state policies or act in the best interests of their students and risk losing their jobs.

The Virginia Education Association, a union of over 40,000 Virginia public school personnel, recognizes the disastrous impact the policies would have on their members and students. They put out a statement opposing the “discriminatory guidelines,” citing the policies’ promise to “compel school staff” to “expose students to emotional and physical abuse.” The VEA called on supporters to leave public comments opposing the guidelines.

LGBTQ+ employees would be uniquely harmed by being required to enforce these policies. Many of them grew up in non-affirming homes and know firsthand the harm their trans students would suffer. Further, the underlying premise of the policies — that trans people do not know themselves and cannot self-identify until they turn eighteen — is an insult to the identity of every trans person in Virginia, including school personnel. Finally, while the new policies do not explicitly discuss trans employees’ bathroom access, prohibiting access to the correct bathrooms for trans students may also impact trans employees.

The Policies’ Legal Shortcomings

These policies will almost certainly face legal challenges, and under a fair reading of applicable precedent, they should not be permitted to take effect. In Grimm v. Gloucester County School Board, just a few months after the Supreme Court recognized Title VII’s applicability to LGBT employees in Bostock v. Clayton County, the Fourth Circuit held that both Title IX and the Equal Protection Clause of the Fourteenth Amendment require Virginia public schools to allow trans students to use the bathroom aligned with their gender identity and correct their school records. This forecloses enforcement of Youngkin’s bathroom policy, and although the plaintiff, Gavin Grimm, came from an affirming home, the case’s reasoning for Gavin’s right to be referred to correctly on school documents should also protect trans students without parental affirmation.

Youngkin’s policy of misgendering students from non-affirming homes requires defining a “transgender student” by a parent’s identification of their child as trans. However, parental affirmation is not, legally or medically, a necessary characteristic of trans status. The Fourth Circuit, citing an amicus brief from major medical organizations, defined gender identity in Grimm as a person’s “‘deeply-felt, inherent sense’ of their gender” and defined transgender people as having a gender identity which “consistently, persistently, and insistently” differed from their gender assigned at birth. This is focused entirely on the identity of the individual. Youngkin cannot simply redefine a protected class and discriminate against its members who no longer meet his “definition.”

Youngkin’s policy requiring misgendering may also violate the First Amendment rights of school employees. In Meriwether v Hartop, the Sixth Circuit sided with a public university professor who refused to use the name and pronouns of a trans student in his class and held the university could not discipline him for this refusal, which the court saw as a matter of “academic speech.” While university professors have greater speech protections than grade school teachers, one could reasonably argue that a First Amendment which protects misgendering trans students should, at a minimum, also protect correctly gendering trans students.

The policies also raise state law concerns. The Virginia Human Rights Act explicitly prohibits discrimination because of gender identity — a central feature of Youngkin’s policies. Further, the policies were promulgated under state law requiring public schools to adopt policies on trans students according to “evidence-based best practices.” Youngkin’s policies are not based on any evidence regarding the best interests of trans students and contradict the guidance of the WPATH. The VEA also emphasizes that the document only contains “guidelines” and that “school divisions are not required to enact these new policies.” While the authorizing state law dictates that “[e]ach school board shall adopt policies that are consistent with but may be more comprehensive than the model policies,” previous trans-affirming guidance promulgated under the same state law was flouted by many conservative school boards who refused to enact compliant policies.

If courts and dissenting school boards do not stop Youngkin, these policies may be subject to future collective bargaining for VEA members. However, Virginia’s 2020 law that opened the door to collective bargaining for public sector employees still requires a local government ordinance authorizing collective bargaining. This has happened in a few school divisions, but no local VEA affiliates have yet reached a collective bargaining agreement. The lack of collective bargaining agreements appears to have limited the VEA’s short-term options for opposing Youngkin’s policies.

These issues are poised to be a cultural and legal battleground for years to come. The rights of trans students and public school employees are inextricably linked here, and Youngkin and his allies should be defeated to protect both.

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