The Real Flashpoint In Virginia’s New Transgender Guidelines For Schools? Teacher Rights. Part 1 of 2

At last, we’ve found a teacher right progressives hate, and a parent right many conservatives don’t like either.

There is a lot of attention, and a lot of inaccurate attention, on Virginia’s new model guidelines for schools and transgender students. Some articles can’t get through the lede without a mischaracterization. That’s politics today.

It’s a pretty safe bet most people talking about the proposed guidelines haven’t read them. As of today there are about 59,000 public comments (many of those from bots) but the Department of Education page that has the actual proposed guidelines has been visited about 7,000 times since they were released. I’ve interacted with plenty of people, including professional media, who have strong views but haven’t read them. That, too, is politics today.

The guidelines are brief, so read them yourself rather than secondary sources or what you heard on social media. (Here is the previous Northam version being replaced.) Only 13 of 133 school divisions were following the Northam plan because many people, including many committed to inclusion for LGBT kids, believe aspects of that policy are unworkable. Some school divisions are instead using guidance from the state’s school board association to balance the various issues here. Because of the way governance works in Virginia the state board, that I serve on, is not involved in these particular regulations. They are legislatively directed to the SEA. So this post isn’t arguing after the whistle about a policy decision I was involved in (though I will offer input as appropriate).

Across this post and the next one I want to look at the crux issue here and an overlooked one. In particular, I want to point up a consequential open question the proposed guidance raises. What rights do teachers have when it comes to calling kids what their parents want them to be called? But first, the core issue.

Concealing Transitions From Parents

My basic view? Transgender, and all LGBT kids, deserve respect, dignity, safety, and love. If you disagree, go talk to some kids. The first three of those are policy issues. The debate about the proposed guidance is turning on the fourth issue – people wanting to show these kids they love them. That’s understandable given headwinds some transgender and gay students face. But this is fundamentally a question of policy. And the crux issue in the guidance is whether schools can socially transition students identifying as transgender while concealing it, or related counseling, from parents.

Here’s the language in the proposed guidance:

“[n]o student shall be required to participate in any counseling program to which the student’s parents object.” Parents must be informed and given an opportunity to object before counseling services pertaining to gender are given.

No policy, guidance, training, or other written material issued by the [School Division] may encourage or instruct teachers to conceal material information about a student from the student’s parent, including information related to gender.

There’s a lot of noise, but these are the table stakes in Virginia and elsewhere.

This is a reversal. The previous guidance, and some additional school division policies that are currently being challenged in court, sanctioned an approach that included concealment from parents or guardians if school personnel believed that was appropriate. Where the actual safety of students is concerned there are steps schools are required to take to protect kids – most people, including me, believe those measures are appropriate. That’s in the guidance, too, though it could be made more clear for readers who aren’t lawyers or trained administrators.* And sadly, in some cases, this is an issue. (Though I’d caution that some of the stereotypes being thrown around are not helpful. You will find parents who love their kids unconditionally in all kinds of communities and parents who reject them in all those places as well).

However, the concealment issue is not about the exceptional cases involving abuse but rather the far more common ones. A family simply not agreeing with your views on gender or handling these issues as you might like is not inherently a health and safety issue or a valid reason for a public school to conceal things from parents or guardians.

This slide above is from a training related to the previous policy.

Look, outside of exceptional circumstances concealing information from parents is wildly unpopular with parents. And also with voters in general. We’re not just talking about high school students, we’re talking about younger children as well. So it’s awful politics. What’s more, it’s not legal under Virginia or federal law and precedents.** It erodes trust in schools at at time we can ill-afford it, it’s not agreed upon best practice, and it will create a backlash.

Still many Democrats have decided that concealing things from parents or giving school personnel authority to act against parental wishes on gender questions is a hill to die on. Making that the fight, as opposed to, say, freedom, respect, dignity, and inclusion reveals how much this is about activist priorities rather than the basic well-being of young people and winnable political fights for inclusion for LGBT students. And it will work against that goal.

Here’s an actual fundraising email from a Dem candidate for office:

Under [Virginia’s previous administration] schools built gender-neutral and single-use bathrooms, called students by their preferred names and pronouns, and notified parents of changes to how their child prefers to be addressed only if it was in the best interest of that child. Now, all that is gone.

In practice, the new policy calls for single-use bathrooms and a bathroom policy in compliance with Grimm,*** a case that originated in Virginia public schools and was a significant legal victory for transgender students. But, especially after the last Virginia election, you’d be excused for thinking a political communication about notifying parents only at the school’s discretion as to what constitutes “best interest” on a sensitive issue like this was a Republican ad rather than a Democratic fundraising pitch.

This politically fraught approach is especially curious given there is significant disagreement about what is best practice. From a July Washington Post story on this issue:

Erica Anderson, a clinical psychologist who is a transgender woman and former president of the U.S. Professional Association for Transgender Health, said leaving parents in the dark is not the answer. “If there are issues between parents and children, they need to be addressed,” she said. “It’s not like kicking a can down the road. It only postpones, in my opinion, and aggravates any conflict that may exist.”

Or more here:

I don’t support policies encouraging schools to withhold information like this from families because it’s not good for trans kids or LGBT kids more generally. Concealing information from parents is at odds with the common sense notion that if having supportive adults is important to helping transgender youth, then cutting key adults out of their life is counterproductive (yes, some people naively assume every family is benevolent but some activists assume they’re all malevolent). As they are on most things, the average family is simply trying to do the best they can.

More generally, this emphasis on concealment creates a toxic frame around the issue and these kids making it about stealth and deception, and consequently furthering the idea that people’s choices about how they want to live shouldn’t be in the open. It allows people to paint fringe activists who want to separate kids from their families as somehow mainstream in this debate. I worry the backlash on transgender people and LGBT students could be substantial and harmful if this continues to be the fulcrum of debate.

This approach also, obviously, privileges school personnel over families. That will rebound against the public schools by eroding trust and creating less space for educators to exercise judgement on sensitive issues. As one school administrator, sympathetic to the need to keep LGBT kids safe, told me, “Once you’ve lost trust on something like this it just unwinds from there.” That’s especially true when we’re talking about school personnel who may have little training here beyond perhaps a workshop or two – that may or may not have exposed them to the full range of informed points of view or research here.

In other words, this is a political box canyon and people are running headlong into it with little thought about the consequences. Why? Probably activist capture. It’s another example of a real and serious issue demanding attention, in this case inclusion and rights for LGBT students, hijacked by advocates in counterproductive ways. See also, police, defund the.

I’d also suggest that if you are the type (often found around social media) who thinks modern America is becoming The Handmaid’s Tale you might pause to ask whether you want the state to have this degree of authority over individual families and their decisions. I don’t. I guess if you want to pay $25K for a private school that offers to keep secrets from you as part of the package, go for it. But we’re talking about public schools here. Even if I disagree with a family’s decisions about how to handle these issues, up to the point of health and safety, I don’t want the state involved. States using child protective services to investigate families of trans kids or schools getting in front of families are both untenable escalations of today’s raging culture war.

Finally, this is one of these revealed preference issues that thrive in the education sector. No small part of this debate, in political terms, is really about a lot of people just trying to show how much they support trans kids through their righteous outrage. And of course, again, these kids, like all kids, deserve love, support, and respect. Yet when you ask about specific aspects of the proposed policy you often get a ‘what wait?’ or a ‘yeah, I don’t agree with that but can’t say it, obviously.’ Or ‘this is just about opposing Youngkin not policy.’ I’m not naïve about the politics. But this is ultimately about actual policy not atmospherics. It’s about actual families not abstract kids. It’s about public schools.

You can’t give a kid a Tylenol without permission. Do you actually think these helicopter or bulldozer parents, who are on teachers constantly about grades, late work, tests, whether the air in the classroom circulates, if it’s too cold to go outside, and all the rest, are suddenly OK with schools making or concealing consequential decisions about their child’s gender from them? All these columnists who are in high dudgeon are fine with their kids’ schools concealing things like this from them or giving their kids counseling without their consent? C’mon.

If you want to show these kids you love them do it not by virtue signaling but by getting serious about freedom, inclusion, and some pretty basic parental rights like having your child called what they or you want. Convince people of that (as we discuss in the next post there is a lot of work to do there). That’s an achievable and meaningful goal. The proposed guidance says,

Every effort should be made to ensure that a transgender student wishing to change his or her means of address is treated with respect, compassion, and dignity in the classroom and school environment.

That’s the kind of standard to fight for and make real. Yet all of the noise is obscuring a key question about that standard: Teacher rights on this question. What are they? It’s a really good question with enormous implications. And the answer is we don’t know because the question is before the courts. It could be a big deal. That’s Part 2.

*Here is an example of language Florida used in its parental rights bill, still requires judgement, training, and restraint for school personnel.

**One area of the law here that is interesting and messy is that the rights young people have are quite confused. In a piece on the mutually assured destruction approach to culture wars, David French pointed out, in California you can get medical treatment to change your gender without parent consent but you can’t get a piercing. In Virginia, you can’t change your name in school as a minor but past a certain age you can, for instance, get birth control, STD testing, and substance abuse treatment without parental consent. At some point we’re going to have a conversation about what it means to be, say, 14-18 in America today from a rights point of view because things are confused now and, as French notes, the toxicity of the debate doesn’t help anything. People are arguing about this to some extent from a perspective of what rights they think students should have not what rights they actually enjoy now.

***Grimm is worth reading, both for the precedent and the facts. What happened to that student is not acceptable and a reminder that there are real issues here with how kids are treated.