ACLU files lawsuit over Virginia guidelines for transgender students

The American Civil Liberties Union (ACLU) of Virginia filed two lawsuits Thursday against the Virginia Department of Education (VDOE) on behalf of two transgender students challenging the department’s 2023 model policies.

Virginia law authorizes VDOE to issue model policies regarding the treatment of transgender students, and the policies are required to reflect “evidence-based best practices” for the inclusion of trans students in public schools. The ACLU of Virginia, along with Freshfields Bruckhaus Deringer LLP, claim the 2023 model policies fail to comply with that mandate.

“VDOE’s 2023 model policies harm the very students they’re supposed to protect,” ACLU of Virginia Senior Transgender Rights Attorney Wyatt Rolla said. “They contradict both their legal mandate and the evidence-based best practices they’re supposed to reflect, and they have already resulted in discrimination that violates state and federal law.”

The lawsuits alleged that VDOE not only ignored its statutory mandate to consider evidence-based best practices but directed public schools to adopt discriminatory policies “in furtherance of an ideological and political agenda.” Freshfields Co-Counsel and Partner Andrew Ewald stated the model policies’ harmful effects on transgender and nonbinary students makes it “hard to avoid the conclusion that their authors were purposefully trying to erase gender-nonconforming students from the classroom.”

The plaintiffs alleged that, as a result of the model policies, they received harmful and discriminatory treatment at school simply because they are transgender. One of the plaintiffs, Jane Doe, is a high school student whose teacher refused to address her by her correct first name. The other plaintiff, Lily Loe, is a middle school student who was prohibited from participating on a girls’ sports team.

The ACLU of Virginia previously expressed concern over the model policies after they were released in July 2023, stating the policies allow trans students to be forcibly outed to their parents and limit students’ access to restrooms consistent with their gender identity. The 2023 policies revised the state’s 2021 model policies, reversing the guidance on trans and nonbinary students’ participation in sports, access to facilities, and name and pronoun usage.

Unlike the 2021 policies, the updated guidelines do not recognize LGBTQ+ students as a protected class and reflect Governor Glenn Youngkin’s emphasis on ensuring parents’ rights in education. The 2023 guidelines require parental permission for students to be called by their chosen names or pronouns and to receive counseling services regarding their gender. According to Jane Doe’s parent Jill Doe, however, the model policies fail to protect parents’ rights: “VDOE’s model policies do the opposite of what they’re supposed to: they undermine my ability to parent my child, they undermine our school district’s ability to educate her, and most of all, they undermine my child’s health and wellbeing.”

LGBTQ+ advocates have urged VDOE to prioritize the privacy and rights of students, claiming students should be allowed to decide who knows about their transgender status in order to prevent bullying and harassment. State Attorney General Jason Miyares, however, concluded in August 2023 that the model policies comply with anti-discrimination laws and that school boards are required to follow them. The plaintiffs are now asking the York and Hanover County Circuit Courts to vacate the 2023 model policies and rule that school districts do not need to adopt them.

According to the ACLU, there are currently 11 anti-LGBTQ+ bills in the Virginia state legislature. Virginia, however, is not the only state dealing with challenges to transgender students’ rights in public schools. The Iowa legislature recently declined to advance a bill that would have removed gender identity as a protected class under the state’s civil rights law. In January, the Ohio legislature overrode its governor’s veto of a bill that bans gender-affirming care for transgender youth and restricts transgender participation in sports.

In 2023, a report by the Trevor Project found that 53 percent of LGBTQ+ students reported being verbally harassed at school because people thought they were LGBTQ+. The report also found that the students who found their schools to be gender-affirming reported lower rates of depression and attempted suicide.