Lawsuits challenging year-old model policies in full swing

(The Center Square) — One year after the Virginia Department of Education rolled out new model policies for the treatment of transgender students, the ACLU has undertaken several lawsuits on behalf of students identifying as transgender, saying the policies violate state and federal law.

One lawsuit was dismissed Monday, and the other two will be heard on Aug. 6 and 20, one in federal court and the other in state circuit court.

The department drew up the original model policies in 2021 after the General Assembly passed a law calling for the creation of policies that “address[ed] common issues regarding transgender students.” Those policies, issued under Democratic Gov. Ralph Northam, focused on inclusivity and advised schools to allow transgender students to use the bathrooms or locker rooms that matched their gender identity. Teachers were to call students by their chosen names and pronouns.

The original model policies did not speak to student participation in school sports “for purposes of developing local school board policies.”

The updated model policies issued on July 18, 2023, were revised to reflect the current Republican administration’s position on transgender issues in schools.

Participation in sports teams and use of gender-specific school facilities were to be based on biological sex. Any changes to a student’s name, pronouns or identity had to be affirmed or requested by the student’s parents. The policies underscore that “the First Amendment forbids government actors to require individuals to adhere to or adopt any particular ideological beliefs,” including “compelling others to use preferred pronouns.”

The case dismissed Monday concerned “Jane Doe,” a transgender girl at a York County high school who had been diagnosed with gender dysphoria, according to the ACLU’s complaint. The student’s mother had indicated school staff should refer to the student by Doe’s chosen name and pronouns, but a teacher refused to do so and instead “referred to her differently than other students by only using her last name.”

York County Circuit Court dismissed the case on procedural grounds.

The other two cases are nearly identical, occurring during the same time frame in Hanover County public schools. However, one case was filed in February, and the other was filed at the start of July.

Both involve transgender female middle school students, “Janie Doe” and “Lily Loe,” who have received puberty blockers – one student got a histrelin implant at the age of nine – and have “never experienced endogenous puberty.” The ACLU’s complaint says that Janie Doe tried out for and made the school’s girls’ tennis team; Loe also tried out for and made the desired sports team, but the complaint does not specify which sport Loe plays.

However, the Hanover County School Board discovered that both students were biological boys. The board requested supporting documentation showing that the students were transgender girls but ultimately voted unanimously to disallow the students from competing on the girls’ teams.

The ACLU argues that the Virginia Department of Education violated the 2020 law invoking the creation of the transgender model policies because the law calls for policies developed according to “evidence-based best practices,” “applicable nondiscrimination laws,” and the “maintenance of a safe and supportive learning environment free from discrimination and harassment for all students.” It claims that including guidance on transgender students’ participation in school sports “directly violates” the law.

The policies also conflict with other state laws like the Virginia Human Rights Act and “the Virginia Constitution’s prohibition of discrimination on the basis of sex,” in addition to federal law, including the U.S. Constitution, Title IX and the Americans with Disabilities Act, according to the ACLU.