A local school board voted unanimously to defy state guidelines that would prohibit single-sex spaces in schools.
In Virginia, parents, teachers, and school boards are gearing up for a protracted struggle over the state department of education’s new guidelines for accommodating transgender students in public schools.
House Bill 145 was enacted in 2020, and tasked the Virginia Department of Education (VDOE) with “develop[ing] and mak[ing] available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards.”
These best practices and procedures were meant not only to help local school boards accomplish the bare minimum — such as complying with existing nondiscrimination law — but also to prevent transgender students from being bullied and explain how to facilitate their “participation in sex-specific school activities, events, and use of school facilities.” The VDOE delegated this mission to a committee composed of various stakeholders including students, unions, parents, and advocacy groups.
Their recommendations, however, are sweeping. Alongside the expected demand that students be welcome to the restrooms and locker rooms “that correspond[] to their gender identity” come frontal attacks on events such as father-daughter dances and the election of homecoming and prom king and queen. At once, the VDOE’s guidance insists that gender identity is of the utmost importance to transgender students and that gender-specific activities and traditions are not only meaningless, but deleterious to students writ large. Gender identity is central to one’s understanding of themselves in some contexts, and also something to be dismissed outright in others.
This contradiction has not been lost on all Virginians.
Indeed, while many county school boards have or are poised to implement policies consistent with the new guidelines, as is required by state law, others are resisting. The boards of education in Augusta, Bedford, Carroll, Pittsylvania, Russell, and Warren counties have all decided not to change their policies.
Late last month, Augusta County’s board unanimously voted down new policies that would have aligned with the guidance despite warnings from counsel that such a decision could result in legal action against them. They did so at a meeting that garnered significant community attention; close to 500 people crowded in to see where the board would come down.
“I do not think that any child in Augusta County Public Schools should ever be bullied, harassed, or in any way made to feel uncomfortable in their respective schools,” declared board member Dr. John Ocheltree, recasting the issue as one in which all students’ dignity and comfort should be preserved.
These boards could be held responsible not just for violating state law, but also federal civil rights law and the Constitution. Case law established last year by the Fourth Circuit Court of Appeals set controlling precedent in Virginia: Schools must allow transgender students to use facilities that correspond with their gender identity, holding that even providing separate, private facilities constituted unlawful, unconstitutional discrimination.
“Just like being cisgender, being transgender is natural and is not a choice . . . being transgender is also not a psychiatric condition,” asserted the Fourth Circuit, taking on the role of medical authority.
This pronouncement and the VDOE’s guidance, like the sociological pronouncements of critical race theory and its associated ideologies, has not sat well with all educators.
In Loudon County, where the school board voted 7-2 to adopt policies aligning with the statewide guidelines, a number of teachers have spoken out in opposition on the grounds that the guidelines would force them to violate their consciences.
One teacher, Laura Morris, quit ahead of the vote that cemented the new rules. Another, Tanner Cross, is suing the school district after he was placed on administrative leave for speaking out against them at a public comment meeting. Two more teachers are appealing to join Cross’s lawsuit, which is being facilitated by Alliance Defending Freedom (ADF), a religious-rights advocacy group with a history of arguing before the Supreme Court.
Some legal scholars are skeptical of the suit’s chances, at least as they pertain to getting rid of the pronoun mandate itself. Jonathan Adler, a Case Western University professor and libertarian legal commentator, told National Review that “the state may control the curriculum at state schools and require that teachers deliver that curriculum. The teacher retains free speech rights outside of the classroom, but the state may require the teacher to cover or not cover certain material and conduct the classroom in a particular way.”
“This is the flip side of the debate over state efforts to limit the teaching of critical race theory in public schools,” he added. In Adler’s view, if conservative lawmakers can ban the teaching of certain theories in the classroom, their liberal counterparts can mandate the use of requested pronouns in those same classrooms.
Tyson Langhofer, the ADF lawyer who is representing Cross, sees a distinction between the two actions. He says that his clients are not “objecting to any specific curriculum.”
Rather, he contends that “teachers have a dual role” as both instruments of the state and as individuals with a personal relationship with their students, and that “when they are calling on a student, or referring to a student, that’s their speech and everyone understands that to be their speech. That’s not part of the curriculum.”
“The law that was enacted here specifically says that the Department of Education must adopt a model policy that is in accordance with evidence-based best practices. This law is clearly not consistent with evidence-based best practices,” he went on, citing the immediate social transition in school it mandates sans any parental approval or medical diagnosis.
Adler still doesn’t buy the argument, explaining that “public schools can have rules of conduct in the classroom, and that this would cover what names or pronouns are used in school, and it would not constitute compelled speech for 1A purposes. The teacher’s speech to students in school is on-the-job speech, not private speech.”
The Virginia court system has yet to weigh in on the issue, but the legal battles that will determine how schools will navigate the treacherous waters of transgender politics have just begun. As the progressive activist class and their ambitions grow, so too does the mass of parents, educators, and local politicians ready to face them. In the coming months and perhaps years, Virginia appears to be primed to be opened up as a major, if not the predominant theater in this war.