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Privacy, safety concerns over Virginia’s proposed trans-student guidance 

People with signs attend a Hanover County Board of Supervisors.
A March meeting of the Hanover County Board of Supervisors drew numerous people both in favor of and opposed to state model policies released under then-Gov. Ralph Northam regarding the treatment of transgender students.

By Whittney Evans and Megan Pauly

Republican Gov. Glenn Youngkin’s proposed guidelines regarding the treatment of transgender students in public schools have set off alarms for supporters of LGBTQ+ rights.

VPM News legal reporter and features editor Whittney Evans spoke to education reporter Megan Pauly about how we got to this point and what experts have to say.

The following has been edited for length and clarity.

Evans: Can you explain what exactly this guidance is?

Pauly: The guidance is essentially a suggested playbook for districts to use in developing their own policies. And it would replace the other model policies the education department put in place last year under then-Governor Ralph Northam. 

Those were drafted because of a 2020 law that required school districts to have policies protecting the rights and privacy of trans students. 

The Youngkin document really affirms the rights of parents regarding transgender students’ rights in school. 

And that’s pretty different from the policies under Northam, right? 

Yes, in a lot of ways, the two documents really contradict each other. Northam’s guidance allowed students to request that teachers use the name and pronouns of their choosing. Youngkin’s guidance takes that right away from the student, requiring permission from parents. The new guidance even defines a transgender student as one whose parent has put that request in writing. 

That’s upsetting to some parents. Stephanie Fisher’s transgender daughter attends school in Hanover County. Fisher said she’s concerned about trans students who don’t have supportive parents.

Fisher: This document, these model policies do nothing to protect the most vulnerable children.

And experts agree with her that this could be really harmful and could even lead to more trans students getting pushed out of their homes. 

Shekila Melchior, a professor at George Mason University, helped write the previous guidance. She represented the Virginia Alliance for School Counseling at the time. She points out that trans kids are at a higher risk for suicide, especially those without supportive parents. 

Melchior: “It's not that we don't want parents involved. It's just that as school counselors, we believe that kids should have autonomy in their mental health, in their physical health. We want to create these healthy whole adults that have the capacity to advocate for themselves and to ask for help.”

Under Youngkin’s guidance, there are other concerns about student privacy, safety — not to mention the legal concerns. 

That’s right, we’re already hearing about potential legal challenges to the new policies. What arguments can we expect?

One issue is that Youngkin’s guidance may not be in line with the state law that the General Assembly passed in 2020. That’s because the law requires that the model policies be based on evidence and best practices. 

Here’s University of Richmond law professor Jack Preis. 

Preis: “It could be that if there's sufficient evidence out there that this is not a best practice — but a bad practice — that the policy doesn't comply with the terms of the statute.”

Other attorneys told VPM News the guidance might also violate the Virginia Human Rights Act, so we could see that argument as well. Though they say lawsuits aren’t likely to be filed until a district actually adopts the policy. 

I think it’s important to point out that these policies are not yet in effect, and school districts aren’t required to adopt them verbatim. 

Yes, there’s a 30-day public comment period that still needs to happen. What happened with the previous model policies could predict what might happen with these new ones.

The vast majority of districts didn’t even adopt the Northam-era guidance in full. What a of lot of them did do was just use really standard, basic language that added in terms like “sexual orientation” and “gender identity” to their existing policies. 

And there’s reason to believe districts may do the same thing here. Though, there is a pending lawsuit right now in Hanover that’s trying to settle the question of whether districts can ignore the guidance, given the 2020 law.