Legal challenges likely against new Virginia policies on transgender students, Del. Roem says

Virginia’s first openly transgender state lawmaker tells WTOP she expects legal challenges will be filed soon to challenge new state Department of Education policies that would dramatically change the rights of LGBTQ students in Virginia schools.

“There’s a world of legal issues with this,” said Del. Danica Roem, a Democrat representing Prince William County. Roem said there are several bases to fight VDOE’s “2022 Model Policies.”

Under the wide-ranging policy, students must use bathrooms that “match the sex they were assigned at birth,” and it also requires parental permission to change their names and genders at school.

The policy shift was quietly released late in the day on Friday.

“This is in direct violation of the Virginia Human Rights Act,” Roem said, referring to the 2021 law signed by Republican Gov. Glenn Youngkin’s predecessor, Democrat Ralph Northam. The VHRA protects against discrimination on the basis of gender identity in public settings, including schools.

“If you discriminate on gender identity, as the governor is doing on this, you are inherently in violation of the Virginia Human Rights Act,” the delegate added.

Roem said the legal challenges will likely come from several directions.

“Do you think any of these school boards in any Northern Virginia jurisdiction are going to put up with this,” Roem asked, rhetorically.

Babur Lateef, chairman of the Prince William County School Board, tells WTOP, “We are looking at the legal implications of the new VDOE rules. But let me make one thing crystal clear. All students come first in Prince William County Schools regardless of their race, religion, or gender, or sexual orientation.”

While Lateef would not go so far as to predict his jurisdiction — or a group of Northern Virginia school boards — would sue the Youngkin administration, this would not be the first time they had joined forces. In February, an Arlington County judge granted seven Virginia school districts a restraining order against Gov. Glenn Youngkin’s ban on mask mandates.

Youngkin has not taken questions since the policy change was made public. In a statement, his spokeswoman Macaulay Porter said: “This is about the right of parents to be involved in such important decisions and all our students are treated with dignity.”

Roem said another legal challenge could come from affected students and their families.

“I would not be surprised if there was a lawsuit to be filed, either as a preliminary injunction, or once there’s actual harm caused to a student because of what the governor is doing here,” Roem said.

A preliminary injunction would likely seek to halt the enforcement of the new policy, which would not go into effect until after a 30-day public comment period, which is expected to begin Sept. 26.

Roem was first elected in 2017, defeating 13-term incumbent Republican Bob Marshall. In 2023, she plans to run for the newly drawn 30th District Senate seat.

The Youngkin policy also addresses the issues of transgender athletes

The newly-released VDOE policies said: “Schools may separate their sports teams on the basis of sex. Neither the Fourteenth Amendment to the United States Constitution, Title IX, nor the Virginia Human Rights Act require school divisions to allow students of one biological sex to participate on sports teams reserved for members of the other biological sex.”

For the past eight years, Roem said, the Virginia High School League has made case-by-case decisions, in the few cases when transgender students have sought to join teams.

“The VHSL is an independent, private entity. The governor does not have the executive authority to tell that private entity what to do in terms of its admission standards for student athletes,” Roem said. “That’s not OK.”

Asked how confident Youngkin is that the new policy would withstand legal challenges, Porter said: “The model policy is crafted to ensure local school boards who adopt it fully comply with all applicable federal and state laws.”

Roem seeks common ground, regardless of political differences

“Regardless of whether someone likes a policy, or doesn’t like a policy, regardless of how people feel about parental rights and everything else, none of us wants any children to be harmed,” Roem said.

The new policy would likely result in school personnel informing parents about their child’s gender identity.  The policy reads: “Schools shall defer to parents to make the best decisions with respect to their children,” according to the policy, including “whether their child expresses a gender that differs with their child’s [biological] sex while at school.”

Roem said children who have been “outed” can be at physical and psychological risk at home.

“You have to realize that is reality for far too many kids who do not come from supportive households. You might think this is 2022, people don’t do that anymore, just because someone is out, you know, they do — absolutely, yes, they do,” Roem said.

Roem said she hopes Youngkin would speak to some transgender children, to understand their points of view.

“I understand the perspective of parents, like, ‘Hey, I want to know what’s going on with my kid at school. I want to make sure I’m involved in their education.’ I completely get that,” Roem said. “But I also understand what it meant for me, when I was a closet-case trans kid, knowing that it wasn’t safe for me at school to talk to anyone about it, and how horrible and miserable I felt over it.”

Roem began her gender transition when she was an adult.

Neal Augenstein

Neal Augenstein has been a reporter at WTOP since 1997. Through the years, Neal has covered many of the crimes and trials that have gripped the region. Neal's been pleased to receive awards over the years for hard news, feature reporting, use of sound and sports.

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