RICHMOND, Va. – A faith-based conservative group filed a lawsuit Tuesday challenging Virginia's new state guidelines on the treatment of transgender students in public schools, alleging the policies violate parental child-rearing rights and student rights to freely exercise their religion.
The lawsuit filed by The Family Foundation of Virginia, the Founding Freedoms Law Center and a parent from Hanover County asks the court to send the model policies back to the state Department of Education for revision.
The suit alleges the department failed to adequately respond during a public comment period to complaints that the policies violate the constitutional rights of students, teachers and parents. The policies address prevention and response to bullying and harassment of transgender students and participation in school activities.
The policies state that “access to facilities such as restrooms and locker rooms that correspond to a student’s gender identity shall be available to all students.” They also say transgender students may use pronouns reflective of their gender identity, and that failure to speak a student's preferred pronouns could be considered harassment and discrimination.
“We maintain our concerns that these guidelines erase basic parental rights and protection of bodily privacy and safety rights for even our youngest students,” said Victoria Cobb, president of The Family Foundation and the Founding Freedoms Law Center, the foundation’s legal arm.
“The constitution of Virginia ensures that the fundamental right of parents to raise their children in accordance with their own beliefs does not simply get erased simply because the state of Virginia chooses to dismiss those rights to fulfill its own ideological agenda,” Cobb said at a news conference.
The lawsuit does not address whether transgender girls should be allowed to compete on girls' sports teams in public high schools, a topic of controversy elsewhere in the country. An Associated Press investigation found that legislators in more than 20 states have introduced bills this year that would ban transgender girls from competing on girls’ teams, but in nearly every case, sponsors could not site a single instance where such participation has caused problems.
In Virginia, the model policies developed by the Department of Education do not address sports participation because high school sports are controlled by the Virginia High School League. The league's rules allow transgender student athletes to play on teams different from their biological gender, but consistent with the student’s gender identity under certain circumstances. The rules require documentation affirming the student’s “consistent gender identity and expression.” The student’s school principal must also provide a statement that says the expression of the student’s gender identity is “bona fide and not for the purpose of gaining an unfair advantage in competitive athletics."
Sarah Via, the mother of two children in the Hanover school district, said she is concerned that under the new policies, when her 10-year-old daughter reaches middle school next year, she could be forced to undress in a locker room in front of a biological male who identifies as female.
“Like most girls, she wants to be modest and wants to choose when a biological male can see her body. How is it appropriate for biological males and school administrators to take that choice from her?" said Via, a plaintiff in the suit.
“This policy concerns me because it usurps and undermines my authority — my parental authority — over my children," she said.
The General Assembly passed legislation in 2020 directing the Department of Education to create model policies on the treatment of transgender students. Named as defendants in the suit are the department and Education Secretary Atif Qarni. A department spokesman declined to comment on the lawsuit.
The lawsuit alleges that the department's review process was rushed and failed to address legal objections raised by parents and the Family Foundation during the public comment period, including claims that the policies violate the equal protection rights of non-transgender students and violate parental rights to direct the upbringing and education of their children. The lawsuit also claims the policies violate religious freedom because they do not include any religious exceptions or accommodations for faculty and students who “maintain orthodox religious precepts about the distinct and complementary nature of male and female.”
Vee Lamneck, executive director of Equality Virginia, said the guidelines are needed.
“We know that Virginia LGBTQ students, specifically transgender youth, face significantly higher rates of discrimination and harassment not only from their peers, but school staff as well. The Virginia Department of Education’s guidance is an important step in the right direction of making schools more inclusive so every child feels safe, welcomed and valued," Lamneck said in a statement.
Under the legislation, local school boards have been directed to adopt policies that are consistent with or more comprehensive than the model policies developed by the state by the start of the 2021-22 school year.