"By denying that support and affirmation to transgender students, your model policies put our children at risk," writes Chairman Jeffrey C. McKay (D) on behalf of the board to the Virginia Department of Education. He emphasizes the county's One Fairfax policy, which ensures equity in decision-making regardless of a resident’s race, color, sex, nationality, sexual orientation, gender identity, religion, disability, income, or where they live.

McKay writes that the policy and its inherent discrimination would have a "chilling effect" on the county's ability to attract companies in the future. "To put it bluntly, discrimination is bad for business." McKay requests that VDOE consider the harm that imposing the model policies would cause.

A transgender student is defined in the 2022 policy as "a public school student whose parent has requested in writing, due to their child's persistent and sincere belief that his or her gender differs with his or her sex, that their child be so identified while at school." Sex refers to biological sex.

The Virginia Regulatory Town Hall website opened for public comment on the model policies on Sept. 26 and will close at 11:59 p.m. on Wednesday, October 26.

The supporting website comments had 66,231 comments as of 6:20 a.m. Oct. 26. View and Enter Comments. https://townhall.virginia.gov/L/Comments.cfm?GdocForumID=1953

The statements in the proposed Virginia Department of Education's "2022 Model Policies on the Privacy, Dignity, and Respect for All Students and Parents in Virginia's Public Schools," take effect if approved. Among the guidelines topics are those focusing on student identification, guidance and counseling, use of pronouns, and student records.

For instance, the revised policy dictates that school division personnel "shall refer to each student using only the pronouns appropriate to the sex appearing in the student's official record." According to the proposed policy, there are some exceptions. A student who is 18 or older, an emancipated student under the age of 18, or the student's parent can notify the division in writing to use a different name or pronouns "because of the student's persistent and sincere belief that the student's gender differs from his or her sex."

Before a student receives school counseling services, including gender counseling, parents must be informed and have the opportunity to object. Furthermore, staff members may only use students' pronouns if they match the student's official record for sex. To change a student's name or sex on the official record, a parent or eligible student must submit "a legal document, such as a birth certificate, state- or federal-issued identification, passport, or court order substantiating the student or former student's change of legal name or sex."

According to the Department of Education, the proposed guidance document changes support efforts to "protect and encourage respect for all students." 

"Thus, we have a collective responsibility to address topics such as the treatment of transgender students with necessary compassion and respect for all students."

The department claims the 2021 Model Policies "promoted a specific viewpoint aimed at achieving cultural and social transformation in schools. In addition, the department cites that the 2021 Model Policies disregarded the rights of parents and ignored other legal and constitutional principles that significantly impact how schools educate students, including transgender students." The department issued the proposed 2022 Model Policies "to provide clear, accurate, and useful guidance to Virginia school boards that align with statutory provisions governing the Model Policies. See Code of Virginia, § 22.1-23.3 (the "Act")."

Supervisor Pat Herrity (R) cast the dissenting vote during the Oct. 25 board meeting that addressed the policies. He wrote in an email, "While this Board refuses to weigh in on other important school issues like poor test scores, the achievement gap, our shrinking student population, and opening schools during COVID, they are quick to engage on political issues. This letter was entirely political, bashing the entire policy without including a single recommended change. With the significant mental health issues our students face today, I believe parents as well as the schools should be engaged to help them through these difficult times."

Other Virginia legislative bodies and school divisions are weighing in. On Wed. Sept. 28, the Alexandria City Council sent a letter to VDOE backing their school board's rejection of Youngkin's proposed policies. On Oct. 3, the Richmond City School Board also formally rejected the policies.

Fairfax County Public Schools released a statement on the proposed policies following the Oct. 6 board meeting: “Our policies and regulations will continue supporting our transgender and gender-expansive students, staff, and families. Fairfax County School Board Policy 1450 protects students, educators, and other staff from discrimination based on sexual orientation and gender identity. Fairfax County Public Schools Regulation 2603." The board is committed to the Virginia Human Rights Act, Title IX's prohibition on gender identity discrimination, and the settled law of Grimm v. Gloucester County School Board, 972 F.3d 586 (4th. Cir. 2020), which requires respect for students’ gender identity.

Chairman Jeffrey C. McKay said that the Board of Supervisors usually defers school policy to its school board colleagues. However, “The proposed new regulations discriminate against the county’s most vulnerable residents, transgender children, and their families and harms them.”

“I hope the Governor sees the many thousands of comments opposing these policies and recognizes that what is currently in place from Governor Northam is working. Our FCPS students and families are doing well and there is no problem to solve,” said McKay.