Public comments flood Virginia over plan to treat students by biological sex, not gender identity

A month after Virginia Republican Gov. Glenn Youngkin's proposed reversal of his predecessor's transgender policies, which let students use restrooms and participate in sports based on their gender identity, the commonwealth's Department of Education is dealing with a crush of feedback from across the country.

The public comment period for the "Model Policies for the Treatment of Transgender Students in Virginia's Public Schools" ended Wednesday night, with nearly 72,000 comments filed by individuals and groups across the political spectrum.

Opposition was forecast early in the proceeding when Virginia public school students staged a walkout against the Republican's proposal, which would also end compelled usage of preferred pronouns.

"Gender dysphoria is a modern social contagion, current among many, infecting impressionable and mentally vulnerable youth in the public school setting," one supportive commenter wrote. "THE STUDENT ALONE DECIDES WHO THEY ARE!" an opposing commenter wrote. "This VA administration was a mistake, but we will fix it by voting next election."

It's not clear which direction the comments are running because the portal is not searchable, simply listing 500 linked comments per page with subject lines. The word "oppose" outnumbers "support" by wide margins on dozens of those pages, but one page includes more than 300 comments with the subject line "Protect Emotionally Vulnerable Children and Parental Rights!"

The 20-page collection of policies, which won't take effect for another month, says that schools "shall respect parents' values and beliefs ... defer to parents to make the best decisions with respect to their children" and "keep parents informed about their children's well-being."

Schools may only "change the legal name or sex in a student or former student's official record" if it's reflected in a legal document or court order. They shall refer to students using only their names or nicknames and "the pronouns appropriate to the sex" in that official record.

Parents can overcome this default by instructing personnel in writing to use different names and pronouns due to "the student's persistent and sincere belief" of a gender identity at odds with their sex. School policies are prohibited from "conceal[ing] material information" such as gender identity from a student's parent. 

Student participation in extracurriculars, overnight trips and "intimate spaces" such as locker rooms and restrooms "shall be based on sex." The policy allows sex-based dress codes as long as they "provide the same set of rules and standards."

"For any athletic program or activity that is separated by sex, the appropriate participation of students shall be determined by sex," the policy says.

Conservative groups, including the Ethics and Public Policy Center, Alliance Defending Freedom, Heritage Foundation, Parents Defending Education, Parental Rights Foundation and Concerned Women for America, filed mostly supportive comments.

The 2021 model policies instituted by Democratic Gov. Ralph Northam actually increased the risk of student suicide by hiding their gender identities from their parents, EPPC argued, challenging the common but poorly supported claim by trans activists that failure to "affirm" children increases their risk of suicide. 

"School administrators who encourage young teenage girls to pursue permanently sterilizing interventions without parental involvement will not be there to pick up the pieces when many come to regret it years hence," the center-right think tank wrote.

"Being forced to sleep or undress alongside males can be traumatic for female sexual assault survivors," ADF wrote. "Many of these women struggle to even enter public spaces where they will encounter men." The group also pointed to the documented higher risk of injury for females who participate in sports against males as reason to keep same-sex competition.

The Heritage Foundation called Youngkin's proposal "nothing short of an essential replacement for existing state policy," which "reject[s] the hard-earned rights of women in American law, culture, and education" in Title IX and misrepresents the Supreme Court's Bostock decision on employment discrimination.

It cited surveys of parents that show they are more satisfied with their children's academic performance, learning experience and safety when the parents are involved in choosing the school. Redefining sex as gender in school policy "would further erode parents’ decision-making authority about their children’s health while supporting policies that could do long-term harm to children," the group said.

PDE suggested the Youngkin administration consider requiring a "medical diagnosis" before a school changed a student's names or pronouns and add a definition of "gender identity" that makes clear it's superseded by the "scientific truth" of biological sex. The group also asked for clarification on the sentence "students are not required to dress in a gender-neutral manner."

Youngkin's proposal "reflects the U.S. Supreme Court's long-standing precedents that parental rights are a fundamental right," the Virginia-based PRF wrote, rattling off decades of rulings from the high court. 

Northam's model policies omitted any mention of "Virginia's fundamental parental rights statute" or SCOTUS precedents, leading Fairfax County Public Schools to arguably violate state law in June by making parental involvement in gender decisions optional, PRF said, attaching its warning letter to the county.

"School districts across the Commonwealth of Virginia have become promoters and enablers of an invasive social contagion that is seductively deceiving students, assailing parental rights, unconstitutionally silencing dissent, and distracting the essential responsibility of public education," CWA wrote.

The group pointed to Florida's review of so-called gender affirming care, which led to the state's ban on puberty blockers and cross-sex hormones for minors. "Florida is correct in taking a cautious stance on the use of these potent drugs and recognizing how socialization in schools is contributing to the rapid rise of their use," CWA wrote.

Lambda Legal, a prominent LGBTQ advocacy group, claimed Youngkin's model policies "undermine the statute's animating principles of respecting and protecting nonbinary and transgender students," exceed the department's authority to regulate athletics and trample on "the constitutional authority of local school boards to enact their own nondiscrimination mandates."

The state "embrace[s] confusion, exclusion, and stigmatization" by flouting the 4th U.S. Circuit Court of Appeals' ruling for transgender Virginia student Gavin Grimm's access to the boys' bathroom at school, the comment said.

"The 2022 Model Policies are premised on the assumptions that 'biological sex' is a binary and that one's 'biological sex' can be easily ascertained, but those assumptions are not rooted in science," the ACLU of Virginia wrote. 

The state is not authorized to "promulgate model policies based on the administration's preferred policy outcomes," which must be "grounded in the science and data surrounding what practices result in the best outcomes for transgender students," the group said.