RICHMOND, Va. — Virginia's Attorney General Jason Miyares issued an official opinion Thursday confirming that the Department of Education's "Model Policies on Ensuring Privacy, Dignity and Respect for All Students and Parents in Virginia's Public Schools" complies with federal and state nondiscrimination laws.
In the official opinion, Miyares says the policies comply with the Equal Protection Clause, Title IX and the Virginia Human Rights Act, and "local school boards are required to adopt policies that are consistent with them."
The 16-page policy focuses on the treatment of transgender students in Virginia schools. Policies include:
- For school activities that are separated by sex, student participation will be based on their sex, not their gender identity
- Students must use a bathroom that corresponds with their sex. Single use bathrooms should be made available
- Parents will be given the right to opt their child out of using sex-segregated bathroom and locker room facilities
Gov. Glenn Youngkin finalized the model policies last month, and since then, several local school districts in Northern Virginia have said they will not enforce them, including Fairfax and Prince William Counties.
“This official Attorney General Opinion simply confirms what the overwhelming number of Virginians already know; parents have a fundamental right to the care, upbringing, and education of their children," Miyares said in a statement. "Parents, not government, are in the best position to work with their children on important life decisions, and no parent signs up to co-parent with the government. In fact, the rights of parents are one of our oldest and most fundamental liberty interests. The Model Policies ensure that all students are treated with dignity and that parental involvement remains at the center. These policies are fully compliant with the law, and school boards across the Commonwealth should support and implement them. It's not just common sense, it's the law."
While the opinion says the model policies are compliant with the law, it does not discuss consequences for those school boards that choose not to enforce the policies.
Advocates for the LGBTQIA+ community sharply criticized Gov. Youngkin. Equality Virginia says this is a dangerous and politically motivated decision that singles out transgender youth. The organization called the opinion "cruel."
"Instead of addressing the very real issues we have ahead of us, Governor Youngkin and his administration continue to push a culture war, removing resources for teachers, ignoring the rights of parents in Virginia and doubling down on it with a non-enforceable opinion from the attorney general," said Narissa Rahaman, executive director of Equality Virginia.
Attorney General Miyares said Thursday afternoon, "the governor's policies are absolutely legal under applicable federal and state law, legal until Title IX and legal under the human rights act".
He also said schools are expected to follow the law.
"Parents in any district that decides they can ignore the Governor's model policy, parents if they feel like their rights are being violated, can then bring a claim in court. That is what every single school district has to reckon with at this moment," said AG Miyares.
Thursday afternoon WUSA9 received statements from some of the school districts across northern Virginia. They are as follows:
Alexandria City Public Schools
Please attribute this response to Alexandria City School Board Chair Dr. Michelle Rief:
The 2023-24 school year just kicked-off on Monday, August 21 and our first School Board meeting is scheduled for this evening, August 24, 2023. We understand that this is an important topic. To that end, we want to give the model policies and recent state attorney general opinion thoughtful review and consideration. The Board will discuss its plan to address this in its upcoming meetings and will update the community as we confirm our path moving forward.
Loudoun County Public Schools
"We are aware of the Attorney General's advisory opinion. Potential change to any school policy deserves careful, thoughtful and intentional consideration before being implemented. The Loudoun County School Board will follow its established process for review and revision of existing and new policies."
-Ian Serotkin, Chair of the Loudoun County School Board
Prince William County Public Schools
PWCS celebrates our diversity as a strength and welcomes all students. PWCS is also committed to creating a safe and welcoming environment and serving as trusted partners in education with our students, families, and community.
The purpose of school division policies addressing nondiscrimination is to ensure that all PWCS students and families have access to our educational programs and facilities so they can learn, graduate, and have successful futures. PWCS' current policies are consistent with federal and state anti-discrimination laws. PWCS policies already prohibit discrimination on the basis of sex, sexual orientation, and gender identity consistent with Virginia law.
The most recent update to PWCS Policy 738, "Nondiscrimination and Harassment of Students," brought this policy into conformity with those other PWCS nondiscrimination policies and regulations intended to ensure compliance with the Virginia Values Act, which was amended by the legislature to prohibit discrimination based on sexual orientation and gender identity.
In Gloucester County School Board v Grimm, the U.S. Court of Appeals clarified that any public school that denies a transgender student the right to access its school programs and facilities, consistent with the student's gender identity, is engaging in discrimination on the basis of sex in violation of Title IX and the Equal Protection clause of the U.S. Constitution. That is the law in Virginia, which VDOE's Model Guidelines acknowledge.
PWCS already has a regulation in place to address the rights of transgender and gender-nonconforming students in our schools. PWCS Regulation 738-5, "Treatment of Transgender and Gender Nonconforming Students," is consistent with both federal and state anti-discrimination laws, and PWCS employees will continue to follow this regulation.
Parents and guardians are critical in their child's education and PWCS has a history of working directly with families of students who are transgender, and those who are gender nonconforming, to ensure a safe and positive academic experience that meets individual student needs. Sensitive situations are addressed on a case-by-case basis in the best interest of the child, while prioritizing safety.
Spotsylvania County Public Schools
“We applaud the Attorney General’s decision. Upholding the fundamental rights of parents is a core value of our SCPS leadership," said Superintendent Mark B. Taylor, J.D.