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Virginia Education Department Releases New Model Policies on Treatment of Student Gender Identity

The Virginia Department of Education issued new 2022 Model Policies pursuant to Virginia School Code § 22.1-23.3 that reverse the 2021 Model Policies. The new policies provide that parents, not students, must communicate with the school regarding matters pertaining to a student’s gender identity.

The 2022 Model Policies are slated to take effect after a brief public comment period and approval by the state superintendent.

2022 Model Policies

The new model policies define a transgender student as “a public school student whose parent has requested, in writing, due to their child’s persistent and sincere belief that his or her gender differs with his or her sex, that their child be so identified while at school.” The model policies also expressly define sex to mean “biological sex.” In addition, the policies mandate that a school board may not distribute policies, guidance, training, or other written materials that “encourage or instruct teachers to conceal material information about a student from the student’s parent, including information related to gender.”

Under the 2022 Model Policies, schools will be required to maintain official records for each student that include their legal name and sex. These records can be changed only if a student’s parent, or an emancipated student, submits a legal document “substantiating the student or former student’s change of legal name or sex.” The model policies also require that a student can only be referred to a name and pronouns other than the ones consistent with their official record if a parent requests such accommodations in writing. Transgender students will be required to join sports teams, use bathrooms, locker rooms, and other facilities that correspond with their biological sex. Teachers are not required to abide by modifications to students’ official records “in any manner that would violate their constitutional rights,” such as their personal religious beliefs.

2021 Model Policies

In 2021, the Virginia state legislature passed Virginia Code § 22.1-23.3, which required the Virginia Department of Education to develop and distribute model policies concerning the treatment of transgender students to each public school board.

Under the 2021 Model Policies, schools were required to:

  • Comply with applicable nondiscrimination laws;

  • Maintain a safe and supportive learning environment free from discrimination and harassment for all students;

  • Take steps to prevent bullying and harassment of transgender students;

  • Maintain student records consistent with the student’s preferred gender identity;

  • Identify students consistent with their gender identity;

  • Protect student privacy and the confidentiality of sensitive information;

  • Enforce dress codes in manner that did not discriminate against students based on their gender identity; and

  • Allow students to participate in in sex-specific school activities (not including athletics) based on their gender identity.

The 2021 Model Policies also provided that transgender students could use the use bathrooms and other facilities, along with personal pronouns and names, consistent with their gender identity.

Federal Law Conflict?

Some question whether the 2022 Model Policies violate federal law. The U.S. Supreme Court declined to review an appeal in Grimm v. Gloucester, leaving in place the Fourth Circuit’s ruling that Gloucester County School Board violated the rights of a transgender student when it restricted his access to the boy’s bathroom. The 2022 Model Policies appear to conflict with 2021 guidance issued by the U.S. Department of Education (DOE) prohibiting discrimination based on gender identity and sexual orientation. A federal district court in Tennessee temporarily blocked DOE’s guidance protecting transgender students in 20 states that have laws or are attempting to pass laws that restrict transgender students’ access to facilities and sports (which does not include Virginia). Therefore, the 2022 Model Policies provide that any modifications to the Policies are permitted only to the extent required by federal law.

Ashlee N. Williams also contributed to this article.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 264

About this Author

Susan D. Friedfel Employment law attorney for educational instituions in White Plains, NY of Jackson Lewis law firm

Susan D. Friedfel is a Principal in the White Plains and New York, New York, offices of Jackson Lewis P.C.

Ms. Friedfel collaborates with clients to find practical solutions for a variety of issues that arise in the workplace. She counsels clients in various industries, including law firms, financial institutions, educational institutions, and not-for-profit organizations, on a wide array of issues.

Susan D. Friedfel  provides advice and counsel on matters such as:

  • employee recruiting and hiring practices
  • family and medical leave
  • reasonable...
Michelle E. Phillips, Jackson Lewis Law Firm, Labor Employment Attorney

Michelle E. Phillips is a Principal in the White Plains, New York, office of Jackson Lewis P.C. She handles various types of employment litigation, with an emphasis on sexual harassment matters.

Ms. Phillips also counsels clients on a variety of labor and employment matters concerning federal and state employment laws. She frequently conducts and advises clients on internal investigations and leads employment discrimination and sexual harassment seminars and in-house diversity training programs for clients.

Carol R. Ashley Labor & Employment Attorney Jackson Lewis Washington, D.C.
Of Counsel

Carol R. Ashley is of counsel in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Of Counsel

Crystal L. Tyler is Of Counsel in the Richmond, Virginia, office of Jackson Lewis P.C. She practices in the areas of employment and higher education, specifically, Title IX.

In her employment practice, Ms. Tyler represents employers in litigation, mediation, and arbitration involving a full range of employment-related claims involving arising under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and various other federal and state laws. Ms. Tyler also provides counsel and...