The Virginia Department of Education’s 2023 “Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools” were first drafted in 2022 and add steps students and parents must take when seeking gender-affirming changes to the student’s identity.

The policies prohibit students from using school facilities or participating in sports activities that don’t align with the sex on their official school record. Changes to that designation require students and their parents to submit school divisions legal documentation like a new birth certificate or passport. A parent must provide written permission in order for a student to go by a different name or pronouns at school.

“Because the manner in which a child is addressed by school officials is inextricably tied to the educational upbringing of that child, parents’ fundamental rights necessarily encompass the prerogative to decide how their child will be addressed while at school,” the opinion said.

“Students who wish to be referred to by certain pronouns without the approval of their parents are not a protected class under any relevant federal or state law,” the opinion continued.

That conclusion drew swift criticism from the ACLU of Virginia, which issued a statement from Legal Director Eden Heilman calling the policies “part of a coordinated, national effort to erase transgender and nonbinary students from the classroom.” 

“At best, they invite discrimination; at worst, they require it,” Heilman said. “Attorney General Jason Miyares’ opinion defending the policies is every bit as cruel and misguided as the policies themselves.”

Miyares, however, argued in his opinion that discrimination on the basis of sex is different from discrimination on the basis of gender identity and that the Fourth Amendment, Title IX and the Virginia Human Rights Act allow for the separation of sexes in certain contexts.

“Both sides of the classification — biological males and biological females — include transgender students and treat them identically to all similarly situated students of the same sex,” the opinion said.

The opinion also stated the model policies do not conflict with the 2020 Grimm v. Gloucester County School Board decision. In that case, the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld a previous ruling that the local school board had violated Title IX by preventing transgender student Gavin Grimm from using a boys’ bathroom.

“Grimm does not impose a blanket rule forbidding sex-separate facilities in all situations,” the opinion said.

Furthermore, Miyares wrote, the model policies “expressly address situations where federal law or a binding decision interpreting federal law may require a departure from the model policy’s default rule.” 

“The model policy addressing bathrooms requires students to use ‘bathrooms that correspond to [their] sex, except to the extent federal law requires otherwise,’ and expressly cites Grimm as an example of a federal law that may require otherwise,” the opinion continues. “A model policy that instructs school divisions to follow federal law, including Grimm, cannot possibly conflict with federal law and Grimm.”  

Because there is not a conflict with state or federal law, the opinion concluded, then school boards are required to adopt the model policies under Virginia code. 

However, the opinion does not comment on what enforcement tools the state has to take action against school boards who do not comply. Several school divisions, including Fairfax, Arlington and Richmond, have openly stated they do not plan to adopt the model policies. 

At a press conference Wednesday, Gov. Youngkin responded to a question about steps the state could take besides telling school boards to follow the law.

“I just ask you to stand by,” Youngkin said. “Just like they initially pushed back when we issued an executive order empowering parents to make decisions for their children, while they are pushing back now, eventually we got to the right place. And I expect us fully to get to the right place.”

The ACLU of Virginia Thursday said that “like all attorney general opinions, today’s is only advisory, not binding.” 

“Virginia courts are not required to follow it,” the group said. “School boards continue to have an obligation to create safe, inclusive school environments for all students in compliance with state and federal law.”