Christian Action Network posts legal challenge to VA transgender student policies

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Christian Action Network has posted a legal response and complaint against the Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools.

The complaint was placed on Virginia’s Public Comment Forum regarding the proposed policies.

With this action, the proposed policies are automatically delayed for an additional 30 days. The Virginia Department of Education must now respond to the legal complaints raised by Christian Action Network in writing by certified mail or by posting a response electronically.

“This is our first step, and a big one, for challenging unlawful and unconstitutional mandates presented in Virginia’s proposed policies for the treatment of transgender students in public schools. We look forward to a swift response from the Virginia Department of Education with the hope they will revise or drop all of the recommended policies that violate the federal and state rights of students, parents, teachers and school staff,” said Martin Mawyer, president of Christian Action Network.

For Martin Mawyer’s critique of the Model Policies, see here.

The entire legal arguments placed on Virginia’s public comment forum is found below:

Violates Va Statutes and Va and US Constitutions

 Overview

  VDOEs Guidance on Model Policies on transgender students is seriously flawed, endangers children, and violates Virginia statutes and both the United States and Virginia Constitutions.

  No one wants schools to sanction or allow discrimination, bullying, or harassment of students based upon sex, biological or gender identification. Bullying is wrong. Discrimination against students based upon transgender status is wrong. Harassment of transgender students is wrong.

  Schools should neither approve, encourage, or discourage transgenderism. Schools should not pit children against their parents based upon different philosophies or ideologies related to sexual function or dysfunction. Schools should not impose major changes on American culture beyond nondiscrimination. The model policies in this misguided Guidance put school divisions in improper roles.  The model policies exceed the authority mandated by the enabling legislation, Virginia Code §22.1-23.3.

  §22.1-23.3 seeks transgender protection, but protection must conform to §22.1-23.3. Evidence-based “best practices” must protect all students. 

  Under §22.1-23.3, VDOE model policies must be “best practice” based upon evidence. The Guidance ignores this requirement. A “best practice” cannot be best if it favors some students to the detriment of others or endangers student safety. A best practice must protect all students. Each best practice must be supported by evidence. The evidence must not only support the need for some practice but must show that the policy is a “best practice.” The Guidance falls far short.

  The Guidance cites controversial studies as evidence of the need for protections but identifies no evidence that resulting policies are “best practices.”

  The model polices also exceed the statutory mandate by addressing sexual dysfunction other than “transgender,” e.g. “nonbinary.” “LGBTQ+” and other alleged sexual variations.

  The Guidance is left-wing indoctrination propaganda masquerading as public policy. The Guidance advances a radical leftist, science-denying, ideology that hurts majority students; is destructive of families and parental rights; and is insensitive to the adherents of most of the planet’s religions.  The Guidance violates Virginia and United States Constitutional rights.

The radical agenda becomes obvious early in the Guidance.  It includes the First Amendment as relevant law protecting speech but ignores the relevance of its protection of religion. The radical agenda is thereby exposed as indoctrination propaganda, including the Marxist goal to destroy the nuclear family. VDOE goes far beyond nondiscrimination by trying to normalize the abnormal.  To prohibit discrimination and harassment, it is not necessary to normalize the abnormal. By analogy, to prevent discrimination against wheelchair bound people, it is not necessary to pretend that wheelchairs are normal.

  The proposed guidelines violate Virginia laws regarding name changes and contain false statements of law to support policies that violate the rights of most students.

  We address specific model policies below, but the Guidance begins with definitions that reflect radical science-denying views to impose a framework both wrong and damaging. The definitions section’s purpose appears to be to impose on school divisions a radical leftist worldview and to expand VDOE’s authority beyond §22.1-23.3.

  Definitions

  Several definitions include the science-denying radical leftist myth that the sex of a child is “assigned at birth.” Biological sex is established (not “assigned”) well before birth. Sex is determined by the baby’s DNA at conception.

The Guidance conflates sex and gender.  Sex is biological. Gender apparently is not. If gender were the same as biological sex, then the term “transgender”–meaning one who identifies as, or is in transition to, a different sex–would make perfect sense. It only makes sense if gender is synonymous with sex. If gender means something more fluid than biological sex as the Guidance implies, then the term “transgender” loses all meaning. Can a transgender person be a nonbinary person who identifies as or is in transition to a Q person?

  The very first Guidance definition is an insulting demeaning term. “Cisgender” is the radical leftist fringe description of a normal heterosexual person.  The term disparages heterosexuals.  The cisgender insult is propaganda and unnecessary. Inherent in the cisgender insult is the science-denying myth that sex is somehow “assigned” at birth rather than being biologically determined by DNA at conception.

  “Sex assignment” is a propaganda indoctrination statement which embodies the mythological anti-science of the radical left. The definition ridiculously claims that “sex assignment” is a “label” (as opposed to being biological) “typically assigned as birth on the basis of a cluster of physical and anatomical features.” That is laughable. The chromosome determining sex almost always produces the internal and external sex organs of that sex. The “Sex assignment” definition unscientifically inverts cause with effect. Biological genetic sex causes of the cluster of organs, which the definition calls “features.” Biological sex is hard-wired in the DNA at conception.  The term “sex assignment” is found nowhere else in the Guidance and is therefore unnecessary anti-science propaganda.

  Medically, the “intersex” definition is wrong. According to the medical encyclopedias, intersex is a group of conditions where there is a discrepancy between the external genitals and the internal genitals, originally known as hermaphroditism. There is no need for this definition of intersex.  It is used nowhere in the Guidance.  “Intersex” is absent from §22.1–23.3.  Its presence is part of the radical leftist propaganda indoctrination.

  The Guidance offers a seriously flawed definition of transgender. The definition begins by saying transgender is a “self-identifying term.” If that were true, there would be no need for any definition. Logic is hard for radical leftists. The definition repeats the science-denying claim that sex is assigned at birth rather than being biologically determined. A more accurate definition would say that transgender refers to a person who identifies as, or is transitioning medically to, the opposite sex. VDOE’s broader definition is unauthorized by the enabling statute.

  The definitions of “transgender boy and “transgender girl” are similarly flawed propaganda. Strangely the Guidance abandons the terms immediately after defining them.  Instead, the Guidance then refers to “transgender male” and “transgender female.” Not boy and girl. Sloppy. VDOE defines unused terms to promote a radical left wing indoctrination propaganda.

  Violations of enabling statue Virginia Code §22.1–23.3

  The enabling statute requires model policies for transgender students. The Guidance exceeds that authority. There is no authority in the enabling statute for LGBTQ+ students or so-called non-binary students, which are not necessarily the same as transgender students. The model policies proceed to exceed statutory authority by including the other categories as if there were the same as transgender.

  The enabling statue requires that the policies be “best practices” supported by evidence. “Best practices” must protect all students, balancing protections for very small minority of transgender students with the psychological and physical needs and safety protections for the other students. The enabling statute requires that the policies, not merely the problems being addressed, be “evidence-based best practices.” The DOE presents no evidence for example that totalitarian speech codes are best practices. Evidence may support the problems, but evidence must support the solutions as best practices.

  The Guidance document offers nothing “evidence-based” for the following disputable, controversial conclusion, much less anything “evidence based” supporting the resulting proposed totalitarian speech code policy as a “best practice”:

  For transgender students, acts of verbal harassment may include the intentional and persistent use of names and pronouns not consistent with their identity. Gender-based harassment may also include the disclosure of the student’s transgender status without their consent as this presents safety concerns for the student.

  This opinion, without basis in actual evidence, is particularly unhelpful in the bullying section. VDOE issued model policies on bullying in 2013 which are perfectly adequate to include transgender students.  It would have been sufficient merely to incorporate by reference the 2013 model bullying policies.

  The Guidance requires school divisions to force absurd anti-English language pronouns on the non-transgender students. One such proposed pronoun group is “ze/hir/hirs” which has no commonly accepted meaning or English language pronunciation.  Mandating the use of unnatural (in the English language sense) pronouns constitutes unconstitutional compelled speech. We suggest that the mandate constitutes bullying of non-transgender students by VDOE or by school division adopting it.

  The Guidance seeks to change important aspects of American culture that are family-affirming and helpful to children. For example, to promote its radical leftist anti-family agenda, the Guidance seeks to prohibit father-daughter dances.

  The Guidance demands that schools prohibit gender specific clothing. What about cheerleader outfits? Must male and female cheerleader outfits all the same? Must male cheerleaders wear short skirts? Must female cheerleaders wear trousers? Heterosexual girls enjoy cheerleader outfits with short skirts because the outfits make them look good. Except for a very small minority, students recognize each other as male and female. Girls dress to attract boys. Boys dress to attract girls. Transgenders dress to attract whatever sex they want to attract. Micromanaging the dress of students damages American culture and destroys rights of most students. The Guidance offers no evidence that the proposed prohibition is a “best practice.”

Violation of Va. Code §8.01-217.

  In Virginia, a person’s legal name at birth is a matter of public record. There is only one way to change a legal name of a child. Va. Code §8.01-217 requires an application by the parents to change the name of a child. The school has no right to do so and no right to use anything other than the child’s legal name. If the school wants a child’s legal name changed, the parents must consent.

  The Guidance makes the false claim that a child’s legal name is protected by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). School divisions are not agencies subject to HIPAA, although school medical personnel (school nurse, school psychologist etc.) may be. The legal name is not a medical record. The Guidance claim that the legal name is subject to HIPAA protection is laughable.

  Violations of First Amendment: Free Speech.

  The totalitarian inclinations of the VDOE to introduce a speech code including compelled speech is a particularly serious violation of students’ rights to free speech under both the First Amendment to the United States Constitution and article I, Section 12 of the Constitution of Virginia. It is likely to subject the school divisions to expensive losing lawsuits.

  Violations of First Amendment: Freedom of Religion.

  The Guidance policies as a whole violate students’ and parents’ religious rights under the First Amendment and under Art. 1, §16 of the Virginia Constitution which reads in part, “That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” Christian forbearance, love, and charity is a personal duty to avoid bullying those who are different, but it is not enforceable by VDOE through unconstitutional speech codes.

  Students and their families have every right to believe in the Holy Bible including Genesis 1:27, “So God created man in his own image, in the image of God created he him; male and female created he them.” VDOE has no right to interfere in the religious beliefs of every major religion including Christianity. This Guidance does exactly that.

  Violations of FERPA and Parents’ Constitutional Rights re Children’s Education.

   According to FERPA, “No funds under any applicable program shall be made available to any State educational agency …that has a policy of denying, or effectively prevents, the parents of students the right to inspect and review the education records maintained by the State educational agency on their children ….” The Guidance encourages school divisions to “effectively prevent the parents of students the right to inspect and review educational records” if records may disclose a gender identity issue. Thus, the following model policy may cause a school division to lose federal funds for concealing their children’s school record information in the following policy:

  In addition to adhering to all legal standards of confidentiality, school personnel shall treat information relating to a student’s transgender status as being particularly sensitive, shall not disclose it to other students and parents, and shall only disclose to other school personnel with a legitimate educational interest.

  Concealing from parents information in a child’s record violates both FERPA and the constitutional right to privacy in the family’s education of children. Pierce v. Society of the Sisters, 268 U.S. 510, (1925); Williams v. Williams, 24 Va.App. 778 (1997)(“We hold that the parents’ right to autonomy in child rearing is a fundamental right protected by the Fourteenth Amendment of the United States Constitution and that state interference with that right must be justified by a compelling state interest.”)

  Violations of Constitutional Rights to Privacy.

  Without best practices evidence, the bathroom and overnight sleeping policies permits any student to enter a bathroom intended for the opposite sex or the sleeping quarters of the opposite sex and prohibits the school from questioning whether the opposite-sex person is transgender. The policy is unsafe, discriminates against non-transgender students and proceeds from several false premises.

  The underlying premise is that a student who self-identifies as transgender is automatically harmless to persons of the opposite biological sex in the bathroom and in sleeping quarters. No evidence to support that premise. The model policies fail to protect children from predators of the opposite sex.

  Even if it can be presumed that the transgender person is harmless to persons of the other biological sex, the policy assumes that it is somehow harassing for a school employee to confirm that the person entering the opposite sex facility, bathroom or sleeping quarters is in fact transgender identifying as the sex for the facility entered. A heterosexual student with evil intent is free under the VDOE policy to enter opposite-sex bathrooms and sleeping quarters without being questioned, clearly a serious safety problem created rather than solved by the model policies.

  The model policy puts additional burdens on heterosexual students using the correct bathroom and the correct sleeping quarters desiring privacy to specifically ask for privacy. Sexual privacy that should be presumed as a right without the need to demand it.  Requiring a demand intentionally discourages the exercise of that right. By intentionally discouraging heterosexual students from seeking privacy in their toilet facilities and in their sleeping quarters, the policy discriminates against non-transgender students.

  VDOE offers no evidence that violating the privacy and discrimination against heterosexual students is somehow a “best practice” supported by evidence.

  The policy is outrageous.

Violates Va Statutes and Va and US Constitutions

Supplementing our comments submitted in parts 1 and 2 posted January 28, 2021, the VDOE model policies unconstitutionally and unlawfully create a religious test for public employment prohibited by the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 16 of the Virginia Constitution.  Torcaso v. Watkins, 367 U.S. 488 (1961).  As we noted previously, Genesis 1:27 states the biblical – and biological – truth that God created man and woman.

The Guidance model policies demand that school employees pretend there is an undefined number of sexes or genders:  man, woman, nonbinary, LGBT+, and whatever else some disturbed person might dream up. We recognize that there are individuals who believe themselves to be psychologically different from their biological sex. We agree that these disturbed individuals should not be discriminated against, harassed, or bullied because of their disability.

The drafters of these policies may disagree whether transgenderism is a disability as opposed to a normal condition, but it is not necessary to force that determination (either way) to prohibit discrimination, harassment and bullying.

Merely to prohibit and prevent discrimination, harassment and bullying, VDOE lacks the legal and moral authority to establish whether the transgender condition is normal or a disability and violates §22.1-23.3 by attempting to do so.

To prevent discrimination, harassment and bullying, VDOE may not lawfully establish what is effectively a religious test for employees. Many employees will have religious objections to using unnatural, made up pronouns on demand.

To prevent discrimination, harassment and bullying, It is not necessary for school divisions to demand that school employees disavow the religious teaching of every major religion on earth as well as the scientific biological reality that human beings are conceived as either male or female in the DNA.

Humane and sympathetic treatment of these individuals will prevent discrimination, harassment or bullying by school employees. Using normal, typical English pronouns does not constitute harassment. We have been unable to locate any reported court case in the United States that says otherwise.

For school employees with a Christian background, it is a core Christian teaching that they should love all persons, including those with a disability (or is nontypical in their sexuality) as part of loving one’s neighbor as oneself as commanded by God, Lev. 19:18. To force the use of unnatural, awkward English pronouns on pain of discipline action constitutes a religious test for employment in violation of the United States and Virginia Constitution.

These proposed model policies are not about equality, they are about conformity. Toe the radical line, or else.

Conclusion

  VDOE’s proposed model policies for transgender students fail to consider the sensibilities, religious beliefs, or safety of the majority student population. The model policies are an attempt to transform the culture by propagandizing the students with respect to their religion and cultural modesty. It is simply wrong in every respect and they violate the various laws set forth above.

The Department of Education must fix the Model Policies to comply with the law and with reason to be fair to and safe for all students, not just transgender students.

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