Virginia Board of Education – In Loco Parentis and Headed to Court

Mark Herring

by James C. Sherlock

Is your child yours or does he or she belong body and soul to the state in the person of the Virginia Department of Education (VDOE)?   

That is a question that is not only reasonable, but absolutely necessary after reading its new transgender student regulation. That regulation represents a straight-up, in-your-face denial of parental rights.

The quasi-religious fervor with which the radical left now pushes children to “find” their transgender selves and the state to offer “support” in that decision to very young children is as disturbing as anything in American life. They consider that gender identity is an innate characteristic that most children “declare” by age five to six. They further believe the state should take it from there to protect them from their parents.

VDOE just released what will prove a fiercely controversial Model Policies for the Treatment of Transgender Students in Public Elementary and Secondary Schools pursuant to House Bill 145 and Senate Bill 161 enacted by the 2020 Virginia General Assembly. Under that 2020 law, the “policies” just released are mandatory for school boards, thus granted the status of a regulation.  

The whole conceit that the government – read the radical progressive left who wrote this regulation for VDOE – knows best what is right for your children is on full display in the document. It presumes to enforce government decisions on the sexuality of very young children both hidden from and against the wishes of the parents.  

The regulation actively blocks parental involvement, offers no exceptions for their religious objections and threatens to report them to Child Protective Services if they are not “supportive.”  

The age at which kids are able to make mature, informed decisions as life altering as changing gender is never part of the discussion in those circles, nor is it in this new product of the Virginia Board of Education. Nearly all parents consider child sexuality first and foremost to be a family matter for their kids.  

The Democrats who control Virginia schools —  the Governor, the Virginia General Assembly and now the Department of Education- – utterly disagree with those parents. And they have directed local school boards to follow their lead.

State decisions on child sexuality without parental consent represent felony child abuse in any moral society.  

But no longer in Virginia.  

The regulation is already facing legal challenges.  The Christian Action Network has filed suit in Lynchburg Circuit Court  claiming that Virginia’s guidelines contain “procedural, legal and constitutional errors.”  He said in a news release that the guidelines also show “contempt and disdain for parental rights, traditional values, and the religious teachings of all major religions.”  

That claim is factually true in the text of the regulation.

Attorney General Herring should have stopped this outrage before it happened. But he and the Governor like the policy.  

Now he will get to defend it in court.

The New Board of Education Transgender Regulation. Join me to review some of the “highlights” of this work. Stick with me here. The only way to believe some of this is to read it.

The Introduction reviews the legislative mandates in House Bill 145 and Senate Bill 161, enacted by the 2020 Virginia General Assembly. 

“The Department of Education shall develop and make available to each school board model policies concerning the treatment of transgender students in public elementary and secondary schools that address common issues regarding transgender students in accordance with evidence-based best practices and include information, guidance, procedures, and standards relating to:

  1. Compliance with applicable nondiscrimination laws;
  2. Maintenance of a safe and supportive learning environment free from discrimination and harassment for all students;
  3. Prevention of and response to bullying and harassment;
  4. Maintenance of student records;
  5. Identification of students;
  6. Protection of student privacy and the confidentiality of sensitive information;
  7. Enforcement of sex-based dress codes; and
  8. Student participation in sex-specific school activities, events, and use of school facilities. “

“Activities and events do not include athletics”

The law not only directed VDOE to create these “model policies,” but gave them the status of regulations by directing each school board in the state to adopt policies modeled after the BOE’s version.

Yet to implement the law, the BOE demonstrably exceeded even its progressive legislative mandate: 

  • The legislation does not suggest the elimination of parental participation from these life altering decisions, yet that is what the Board did;   
  • Nor did the legislation prohibit religious accommodations, but none are made. 

It doesn’t take a legal mind to see the epic collisions that are going to occur among: 

  • the new Virginia law; 
  • the BOE regulations reviewed below that appear to have exceeded the mandate of the law; 
  • parents; 
  • religious organizations;
  • local school boards; and 
  • the Constitutions of Virginia and the United States and their organized defenders.  

Virginia Circuit, Appeals and Supreme Courts might as well clear space, actually a good deal of space, on their dockets.

Specific Issues 

The Background section provides terminology. A pretty daunting list. It turns out later that misuse of the approved terminology is an official violation of some sort. I wonder what they will do with all of those students who can’t read. But I digress.

In the Related Laws section, go down to Conversion Therapy Prohibited: § 54.1-2409.5.  Virginia state law prohibits conversion therapy for a person under 18 years of age.  

“As used in this section, “conversion therapy” means any practice or treatment that seeks to change an individual’s sexual orientation or gender identity.”

The drafters of this document were so zoned in that they did not see the irony. It can be argued that their policies promote conversion from one gender identity to another in the under-18 demographic.

Guiding Principle to Support Transgender Students

“The key guiding principle of the model policies is that all children have a right to learn, free from discrimination and harassment.”

The regulation is on absolutely solid ground there. The earthquake starts to happen immediately thereafter.

“For many people, their gender identity matches their sex assigned at birth. For others, their gender identity does not necessarily correspond to the sex assigned at birth, where the gender identity may be one in a range such as transgender, nonbinary, or gender-expansive. Gender identity is considered an innate characteristic that most children declare by age five to six (Lamb & Lerner, 2015).”  

The following sentences suggest that such kids should feel safe. Certainly all kids should always be made to feel safe.

To the degree that the BOE regulation supports that “transgender students, have safe, supportive, and inclusive school environments,” I support them as I think do nearly all parents. Bullying, harassment and discrimination should be banned and are.  

Privacy and Confidentiality should certainly be maintained but, on this issue, not from parents.

Student identification.

“A school administrator may need to direct school staff to abide by the wishes of a student on their name and pronoun. A school employee’s intentional and persistent refusal to respect a student’s name and pronoun is considered discriminatory. Schools also should be prepared for genuinely innocent confusion or uncertainty that may come up from school staff and students. Existing school board policies, including anti-discrimination, harassment, and bullying policies, may need to be adjusted or clarified relating to processes that address when a school staff member fails to comply with the student’s request or an administrator’s directive to use the name and pronoun consistent with their gender identity.”

What could go wrong there?

But next the real trouble is sought and will found immediately:

“In the situation when parents or guardians of a minor student (under 18 years of age) do not agree with the student’s request to adopt a new name and pronouns, school divisions will need to determine whether to respect the student’s request, abide by the parent’s wishes to continue using the student’s legal name and sex assigned at birth, or develop an alternative that respects both the student and the parents. This process will require consideration of short-term solutions to address the student’s emotional needs to be affirmed at school as well as the long-term goal of assisting the family in developing solutions in their child’s best interest. For example, a plan may include addressing the student at school with their name and pronoun consistent with their gender identity while using the legal name and pronoun associated with the sex assigned at birth when communicating with parents or guardians.”

School staff should be prepared to support the safety and welfare of transgender students when their families are not affirming. School staff should provide information and referral to resources to support the student in coping with the lack of support at home, provide information and resources to families about transgender issues, seek opportunities to foster a better relationship between the student and their family, and provide close follow-ups with the family and student.”

“To comply with § 63.2-1509 of the Code of Virginia, whenever school personnel suspects or becomes aware that a student is being abused, neglected, or at risk of abuse or neglect (as defined by § 63.2-100 of the Code of Virginia) by their parent due to their transgender identity, they must notify Child Protective Services immediately. Before making a decision on policies relating to situations when parents or guardians are not accepting of the student’s gender identity, school divisions should consult their school board attorney.”

Which is it, immediately notify CPS or consult with the school board attorney first?

We are apparently to understand from all of this that “school personnel” should “report their concerns to Child Protective Services” when they “suspect” that a child “age five to six” is “subject to abuse” at home for “declaring” its new gender identity.


“When a student or parent requests to change the student’s name or gender on school records, the extent to which records are modified will depend on the type of record and the substantiation of the change.”

Student or parent.

The Dress Code section is pretty graphic and anatomically correct except for, well, reproductive systems.

The Access to Activities and Facilities section will require an on-call lawyer to ensure compliance on a day-to-day basis.

The Professional Development and Training section requires that “professional development include culturally affirming, accessible LGBTQ+ competency training.” It requires absolute philosophical and technical compliance by school staff. No exceptions are offered for religious objections.

Then there are “Other Considerations”.  

“Involving appropriate community members should help to reconcile sometimes deeply conflicting community views. For example, engaging students and parents will be critical in developing policies and procedures relating to student privacy and addressing situations where parents are not affirming their child’s gender identity. Additionally, local school boards may need to review agreements and processes with community partners for any activities taking place on school grounds to ensure consistency in practices. For example, local school boards may consider the applicability of policies relating to dress code and access to activities and events for programs such as Junior Reserve Officers Training Corps (JROTC) or community youth athletic leagues who use school facilities. While the conversation is not easy, local school boards and school staff will need to provide clear guidance on the implementation of these policies and reduce their exposure to legal liability.” Seriously, that is how it reads.

“When a student informs the school about their transition or requests a change to their name and gender, it is recommended that a point-of-contact, or a multi-disciplinary school team if needed, meet with the student (and parents/guardians if the parents/guardians are affirming of the student’s gender identity) to develop a plan to accommodate the student’s needs and requests.”

The regulation appears to be a colossal overreach. It should provide many headlines this year or perhaps for years to come.  

The first headline should be the responses of the Governor and Attorney General when asked their positions on this regulation.  

But they won’t be asked by the press with whom they choose to talk.