School districts across the country lukewarm on new transgender policies, setting up legal battles
Breccan F. Thies
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Between the last school year and the new one, legislators in many areas have implemented new laws controlling district officials’ abilities to pursue the transition of children without their parents’ consent or knowledge.
While many restrictions on school conduct have come from state law, some were borne from school board decisions that run counter to the state government’s wishes.
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The new policies came after national outrage at the revelation that school districts were allowing children to go by different names, use different pronouns, and wear clothing and use restrooms that did not align with their sex in order to “affirm” a child’s claimed gender identity.
Whether the policies came from state or local government, they have been met with resistance in both instances, setting up legal battles between states and their school districts across the country.
“We are seeing some state officials rightfully lean into the constitutionally protected right of parents to direct the care, upbringing, and education of their children,” Erika Sanzi, Parents Defending Education director of outreach, told the Washington Examiner. “Others are actively trying to decimate that right.”
Virginia
The commonwealth of Virginia has been ground zero for the education debate since the issue came into the sights of the conservative movement and remains so.
Gov. Glenn Youngkin (R-VA), who won in many respects based in large part on the education and parental rights issues, recently implemented new guidance for school districts in the treatment of students claiming transgender identity.
Although the Old Dominion’s 133 school districts are required to write policies in compliance with the guidance, many boards heading into the 2023-2024 school year are either refusing to implement or are dragging their feet.
Virginia’s two largest school districts, Fairfax and Prince William counties, have indicated that they will not adopt the policies, and Virginia Beach failed to pass the policies in a 5-5 vote. Spotsylvania and Roanoke counties are two of the only counties that have adopted them as of Wednesday, though the vast majority of school boards have not even considered them one way or another.
“These are the same school boards that fought us on whether parents should be deciding whether their child wears a mask or not,” Youngkin said at a press conference in response to the defiance, referencing a 2022 executive order making masking in school optional. “I think they were wrong on all these issues, and I know they’re wrong here.”
The phenomenon is not unique to Virginia, as former Democratic Gov. Ralph Northam’s corollary policies requiring school districts to pursue child transitions were also rejected or not adopted by the lion’s share (90%) of counties, according to the Virginia Mercury.
Despite that, Republican Attorney General Jason Miyares issued an advisory opinion saying the new guidance complies with state and federal nondiscrimination law, schools are required to adopt the policies, and parents in noncompliant districts have the right to sue.
“If a school board voted not to adopt policies consistent with the model policies, parents can sue under current state law,” Miyares spokeswoman Victoria LaCivita said, according to the Virginian-Pilot. “Our office will be monitoring all litigation and will be prepared to participate where doing so is appropriate and parents have valid claims.”
North Dakota
Gov. Doug Burgum (R-ND) signed a series of bills restricting gender ideology in schools, including on issues of pronouns, names, bathrooms, and requiring school officials to notify parents if their child claims transgender identity.
However, school district implementation of those bills is in a similar place as Virginia, where some are begrudgingly doing so and others claim violation of federal nondiscrimination law, refusing to implement.
Fargo Public Schools Superintendent Dr. Rupak Gandhi came out opposed to the new policies, and the school board supported his opposition.
“The Fargo Public School District has made the determination that federal law takes precedence,” district spokeswoman AnnMarie Campbell told the Washington Examiner, citing the Supreme Court’s Bostock v. Clayton County decision. “Therefore, the Fargo Public School District will not discriminate against students based on their gender identity or sexual orientation.
Texas
A new policy in Texas’s Katy Independent School District went into effect Tuesday, requiring parental notification. It also prohibits staff from referring to children by pronouns that do not align with their biological sex and requires students to use restrooms and other facilities on a “sex-specific” basis.
It was passed on a narrow 4-3 margin.
Critics say the policy forcibly “outs” children who identify with another gender, and students are planning protests of the new policy, the Houston Chronicle reported. However, while the American Civil Liberties Union of Texas hinted at a lawsuit, legal action is not yet on the horizon.
California
The same cannot be said for California, where state Attorney General Rob Bonta filed a lawsuit against Chino Valley School District for requiring schools to notify parents about a claimed transgender identity.
“It’s hard to comprehend why this is the hill so many elected officials in blue states have chosen to die on, but sadly, that’s where we are,” Sanzi said.
Chino’s proposal passed 4-1.
“The forced outing policy wrongfully endangers the physical, mental, and emotional well-being of non-conforming students who lack an accepting environment in the classroom and at home,” Bonta said in a press release. The lawsuit alleges that students in Chino are “currently under threat of being outed to their parents or guardians against their express wishes and will.”
However, Chino is sticking by its decision, with the school board president, Sonja Shaw, telling the Washington Free Beacon, “Once again this is government overreach and the political cartel of Bonta, [Gov. Gavin] Newsom, and [state Superintendent Tony] Thurmond is using their muscle and taxpayer dollars to shut parents out of their children’s lives.”
Chino is not the only school district to pass similar policies. Murrieta Unified School District became the second to do so after Chino, followed by Anderson Union High School District in Shasta County and Temecula Valley Unified School District. Orange County Unified School District is considering the policy as well.
New Jersey
In the past week, three Monmouth County, New Jersey districts — Manalapan-Englishtown, Marlboro, and Middletown Township — have been blocked by a judge from implementing parental notification requirements.
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The decision does not decide the case but rather stops enforcement during the course of litigation.
“Notifying parents about issues affecting their children is not discrimination,” Middletown board president Frank Capone told the Two River Times. Board attorney Bruce Padula added that “it is simply not discrimination to tell parents if their child decides to change the gender in their student records.”