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ACLU sues Virginia Department of Education over transgender policies

Students walk out of Richmond’s Open High School in September 2022 to protest Gov. Glenn Youngkin’s proposed policies for the treatment of transgender students. (Crixell Matthews/VPM News File)
Students walk out of Richmond’s Open High School in September 2022 to protest Gov. Glenn Youngkin’s proposed policies for the treatment of transgender students. (Crixell Matthews/VPM News File)

The Virginia Department of Education is facing two lawsuits over transgender student policies revised by Gov. Glenn Youngkin’s administration that prioritize parents’ rights.

This story was reported and written by our media partner The Virginia Mercury

On Thursday, the American Civil Liberties Union of Virginia announced that it and law firm Freshfields Bruckhaus Deringer, LLP filed two separate lawsuits on behalf of two transgender students in the counties of  Hanover and  York who are challenging the department’s policies that some schools across Virginia have adopted. The ACLU promotes and defends citizens’ civil liberties and rights.

In response to the Mercury’s request for comment following the announcement, Department of Education spokesperson Todd Reid said the office is unable to discuss ongoing litigation.

Wyatt Rolla, a senior transgender rights attorney with the ACLU of Virginia, said the model policies “harm the very students they’re supposed to protect” and “contradict both their legal mandate and the evidence-based best practices they’re supposed to reflect,” resulting in what Rolla described as discrimination that violates state and federal law.

“It’s a shame VDOE has put school districts between such a rock and a hard place by telling them to implement policies that could open them up to serious legal trouble,” said Rolla.

The first model  policies for transgender students were designed in 2021 under former Gov. Ralph Northam to provide school officials guidance on the treatment of transgender and nonbinary students and to protect the privacy and rights of these students. Advocates say one of the rights students should have is the power to decide who finds out about their transgender status, to protect them from being bullied or harassed.

Some schools initially declined to adopt the model policies, and the state law that led to them lacked enforcement incentives or penalties. Under the Youngkin administration, the policies were revised to  require parental approval for any changes to students’ “names, nicknames, and/or pronouns,” direct schools to keep parents “informed about their children’s well-being” and require that student participation in activities and athletics and use of bathrooms be based on sex, “except to the extent that federal law otherwise requires.” Virginia schools have also not fully adopted the revised policies, and state law has not changed since the policies were overhauled in 2023.

Attorney General Jason Miyares  concluded last August that the model policies comply with federal and state anti-discrimination laws and that school boards must adopt policies in line with them.

ACLU and Freshfields withheld the identities of the two students referenced in the lawsuits out of safety concerns. 

The York student, identified as “Jane Doe” in one of the lawsuits, claimed that at least one teacher had refused to address the student by her correct first name. The other lawsuit centers on allegations that the Hanover School Board prohibited “Lily Loe,” a middle school student, from participating on a girls’ sports team after her parents provided the requested documentation to establish her eligibility.

“When you look at the ways that VDOE’s model policies are hurting transgender and nonbinary students like our clients, it’s hard to avoid the conclusion that their authors were purposefully trying to erase gender-nonconforming students from the classroom,” Freshfields co-counsel and partner Andrew Ewaltin said in a statement. “That flouts both existing nondiscrimination law and the Virginia law that directed VDOE to develop model policies in the first place.”

According to Hanover and York circuit court records, no dates have been set in either case.