Do the 2023 Virginia Department of Education model policies on athletics, parental information, pronoun usage, and bathroom and locker room access for transgender students violate the Equal Protection Clause, Title IX, or the Virginia Human Rights Act, and must local school boards adopt them?
Plain-English summary
In 2023, Governor Glenn Youngkin asked the AG to evaluate three of the Virginia Department of Education's revised model policies for transgender students. Virginia Code § 22.1-23.3 requires VDOE to develop model policies for "common issues regarding transgender students," and requires every local school board to "adopt policies that are consistent with" the model policies. The Department withdrew its 2021 model policies (described as promoting "a specific viewpoint") and adopted a revised set in July 2023. Three policies in particular were under scrutiny:
- Model Policy H (Athletics): For sex-separated athletic programs, "appropriate participation . . . shall be determined by sex rather than gender or gender identity," with reasonable modifications "only to the extent required by law." "Sex" is defined as "biological sex."
- Model Policy D (Information and Pronoun Default): School divisions cannot "encourage or instruct teachers to conceal material information about a student from the student's parent." School personnel default to pronouns matching "the sex appearing in the student's official record," but use other pronouns "if an eligible student or a student's parent has instructed [the school division] in writing." School divisions must comply with laws barring disclosure to parents (e.g., § 22.1-272.1(B), suicide-risk situations).
- Model Policy G (Facilities): Overnight accommodations, locker rooms, intimate spaces, and bathrooms are "based on sex" except "to the extent that federal law otherwise requires."
Attorney General Jason Miyares concluded that all three policies are consistent with the Equal Protection Clause of the Fourteenth Amendment, Title IX, and the Virginia Human Rights Act, and that local school boards therefore must adopt consistent policies under § 22.1-23.3.
The opinion's core legal argument is that the policies classify on the basis of biological sex (not gender identity), and that classifications based on biological sex are constitutionally permitted in athletics, intimate facilities, and similar contexts because of "enduring" physical differences (citing Justice Ginsburg's opinion in United States v. Virginia (1996)). Title IX expressly permits sex-separate athletic teams (34 C.F.R. § 106.41(b)) and sex-separate intimate facilities (34 C.F.R. § 106.33). The VHRA's prohibition on gender-identity discrimination, the AG argues, does not extend to policies that classify on biological sex.
The opinion grapples with Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), which held a Virginia school board's bathroom policy unconstitutional as applied to a single transgender student. The AG distinguishes Grimm as an as-applied decision tied to a specific factual record, not a categorical rule against sex-separate facilities. The model policies' "except to the extent that federal law otherwise requires" language, the AG argues, accommodates Grimm.
The opinion expressly disagrees with court decisions outside the Fourth Circuit that reach different conclusions (e.g., Hecox v. Little, 9th Cir. 2023), framing them as inconsistent with the ordinary meaning of "sex." The opinion does not bind those courts and its conclusions remain contested in ongoing litigation.
What this means for you
If you serve on a Virginia school board
The opinion takes the AG's position that § 22.1-23.3 obligates you to adopt local policies consistent with the model policies, and that those model policies do not violate federal or state anti-discrimination law. School boards that did not adopt consistent policies would be acting against the AG's interpretation, and may face state-level enforcement. However, individual application of these policies to specific students may face as-applied constitutional challenges in federal court (Grimm-style), and the opinion does not insulate the school board from those.
Practical step: adopt policies that mirror the model policies, including the "except to the extent federal law otherwise requires" language. Document each policy adoption. Coordinate with your division attorney before applying these policies to a specific student; the as-applied analysis is fact-intensive.
If you are a school principal or division attorney
The "except to the extent federal law otherwise requires" carve-out is doing significant work. When a transgender student requests use of facilities matching their gender identity, the question is whether Grimm or other binding Fourth Circuit precedent requires accommodation in the specific factual context. The opinion does not answer that question. Consult counsel on a case-by-case basis. Keep careful records of facts that affect the as-applied analysis: the student's gender transition history, their family's involvement, the specific facilities and accommodations available, and any medical or counseling documentation if relevant.
If you are the parent of a transgender K-12 student in Virginia
The model policies set defaults that may not match your child's expressed gender identity. You can override the pronoun default in writing under Model Policy D(4). For facilities and athletics, the model policies require you to negotiate "reasonable modifications" individually with the school division "to the extent required by law." Document your communications. If your child experiences harm under the policy, consult a civil-rights attorney about an as-applied federal claim under Grimm.
If you are the parent of a non-transgender K-12 student
Model Policy D obliges school divisions to inform you about matters "reasonably expected to be important to a parent." That can include changes in how your child is being addressed at school, but is subject to laws like § 22.1-272.1(B) prohibiting parental contact in narrow suicide-risk-from-parental-abuse situations.
If you are a transgender student in Virginia public school
The opinion reads federal anti-discrimination law as not requiring schools to provide facilities and athletics matching your gender identity beyond what specific federal precedent compels. Grimm provides a route for an as-applied challenge if the school's application of these policies causes you concrete harm. A civil-rights attorney can evaluate your individual circumstances. Resources include the ACLU of Virginia, Lambda Legal, and the Transgender Legal Defense and Education Fund.
If you are a teacher
Under Model Policy D's pronoun rules, you default to pronouns matching the sex in the student's official record. You use other pronouns when the parent (or eligible student) has provided a written instruction. The opinion treats teachers' speech and religious exercise as protected (citing Kennedy v. Bremerton, Loudoun County v. Cross, Meriwether v. Hartop). If you have sincerely held religious beliefs about pronoun usage, those are likely accommodated under Title VII and First Amendment principles, but consult counsel about your specific situation.
If you are a civil-rights attorney
The opinion is interpretive and does not bind federal courts. Its strongest legal moves are (a) classifying the model policies as biological-sex classifications rather than gender-identity classifications and (b) treating Grimm as as-applied. Both moves are contested. Adams v. School Board of St. Johns County, 57 F.4th 791 (11th Cir. 2022) (en banc), is the AG's anchor case for the as-applied / facial distinction; B.P.J. v. W. Va. State Bd. of Ed. (S.D.W. Va. Jan. 5, 2023) is cited for the same proposition; Hecox v. Little (9th Cir. Aug. 2023) goes the other way and is dismissed by the AG. The Fourth Circuit's Grimm decision is the most relevant binding precedent for Virginia.
Common questions
Q: Does Title IX prohibit sex-separate sports teams?
A: No. 34 C.F.R. § 106.41(b) expressly permits sex-separate teams "where selection for such teams is based upon competitive skill or the activity involved is a contact sport." Title IX's regulations were drafted to expand opportunities for female athletes by enabling sex-separate teams, not to require coed teams.
Q: Does the Equal Protection Clause prohibit sex-separate sports teams?
A: Sex-based classifications get intermediate scrutiny: they must serve an important governmental objective and substantially relate to that objective. Federal courts have consistently upheld sex-separate sports teams as substantially related to redressing past discrimination against women and promoting equality of athletic opportunity.
Q: Does Bostock v. Clayton County (2020) apply here?
A: Bostock held that Title VII's prohibition on sex discrimination in employment includes discrimination based on transgender status. The opinion cites Bostock for the proposition that transgender status is a "distinct concept[] from sex," but argues that Bostock does not require Title IX or Equal Protection to treat policies classifying on biological sex as discriminating against transgender people. Federal courts disagree about how broadly Bostock extends beyond Title VII.
Q: What about Grimm? Doesn't it require Virginia schools to let transgender students use bathrooms matching their gender identity?
A: Grimm held that, on the specific factual record before the Fourth Circuit, the school board's policy was unconstitutional as applied to Gavin Grimm. The AG opinion treats Grimm as a fact-bound, as-applied decision rather than a categorical rule. The model policies include "except to the extent federal law otherwise requires" language meant to comply with Grimm in cases where its facts apply. Courts may disagree about whether the model policies actually comply with Grimm in particular applications.
Q: Does the Virginia Human Rights Act protect transgender students?
A: The VHRA prohibits discrimination based on "gender identity" in public accommodations. The AG opinion concludes that policies classifying on biological sex do not discriminate on the basis of gender identity. This reading is contested. Civil-rights attorneys argue that classifying on biological sex in ways that disproportionately exclude transgender students is, in substance, discrimination based on gender identity.
Q: Can a teacher refuse to use a student's preferred pronouns on religious grounds?
A: The opinion cites Kennedy v. Bremerton and Loudoun County v. Cross for the proposition that teachers' speech and religious exercise are protected. Teacher accommodation under Title VII and the First Amendment is fact-specific. Consult counsel.
Q: What if my school board adopts policies different from the model policies?
A: § 22.1-23.3(B) requires school boards to adopt policies "consistent with" the model policies. The AG's opinion confirms this is mandatory. A school board adopting different policies risks state-level enforcement and litigation. The procedural posture for challenging the school board's deviation would likely be a state-court action.
Q: Is this opinion still good law?
A: AG opinions are persuasive authority, not binding precedent. This opinion has been challenged in subsequent litigation; courts are not required to defer to it. The model policies themselves remain in effect as VDOE policy unless changed by VDOE or invalidated by a court.
Background and statutory framework
Virginia Code § 22.1-23.3, enacted in 2020, directs the Department of Education to "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." The statute lists eight required topics, including "[s]tudent participation in sex-specific school activities and events and use of school facilities." The list is non-exhaustive; the Department has discretion to address other "common issues regarding transgender students."
VDOE adopted initial model policies in 2021 under the Northam administration. The Youngkin administration's VDOE withdrew those in 2023, citing the prior policies' failure to "recognize . . . principles that significantly impact how schools educate students," particularly parental rights.
The 2023 model policies (effective July 19, 2023) include:
- Model Policy A through F (preliminaries on definitions, scope, and parental rights)
- Model Policy D: parental notification, default pronoun rules, written-instruction override
- Model Policy G: sex-based facilities (overnight, locker rooms, bathrooms) with federal-law carve-out
- Model Policy H: sex-based athletics
Model Policy H further provides that "[s]ex" is defined as "biological sex," and that reasonable modifications can be made "only to the extent required by law."
The opinion frames the legal question as whether these policies violate three sources of anti-discrimination law: (1) the Fourteenth Amendment Equal Protection Clause, (2) Title IX of the Education Amendments Act of 1972, and (3) the Virginia Human Rights Act.
The opinion's analytical move on each:
- Equal Protection: Sex-based classifications survive intermediate scrutiny when serving important objectives (redressing past sex discrimination, promoting privacy, maintaining safe learning environments). Sex-separate athletics, intimate spaces, and bathrooms have been upheld in similar federal cases. The AG argues that even if some applications of the policies are unconstitutional under Grimm, the model policies' "except to the extent federal law otherwise requires" language accommodates that.
- Title IX: Express regulatory permissions for sex-separate teams (34 C.F.R. § 106.41(b)) and intimate facilities (34 C.F.R. § 106.33) defeat the claim that Title IX requires gender-identity-based access.
- VHRA: The Virginia statute separately prohibits discrimination on the basis of "sex" and on the basis of "gender identity." The AG argues that the legislature's choice to enumerate both terms separately means policies classifying on biological sex are not (without more) gender-identity discrimination.
The opinion's treatment of Grimm is its most contested move. Grimm held that the Gloucester County school board's bathroom policy was unconstitutional as applied to Gavin Grimm, with the court explicitly noting facts about that high school's specific bathroom configuration, the student's gender transition, and the school board's record. The AG opinion treats Grimm as cabined to its facts; civil-rights attorneys read Grimm more broadly, as recognizing transgender students' constitutional and statutory rights to facility access matching their gender identity. Subsequent federal cases (Adams v. St. Johns County, B.P.J. v. W. Va. State Bd. of Ed.) and the AG opinion side with the narrower reading; other cases (Hecox v. Little, the underlying Bostock framework) point the other way.
Citations
- U.S. Const. amend. XIV, § 1
- 20 U.S.C. §§ 1681-1688; 20 U.S.C. § 1686
- 34 C.F.R. § 106.33; 34 C.F.R. § 106.41
- Va. Const. art. VIII
- Va. Code Ann. §§ 2.2-3900 to -3909, 2.2-3904
- Va. Code Ann. §§ 22.1-23.3, 22.1-78, 22.1-272.1(B), 1-240.1
- VDOE, Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia's Public Schools (July 18, 2023)
- United States v. Virginia, 518 U.S. 515 (1996)
- Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020)
- Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020)
- Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022) (en banc)
- Troxel v. Granville, 530 U.S. 57 (2000)
- Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022)
- Loudoun Cnty. Sch. Bd. v. Cross, 2021 WL 9276274 (Va. Aug. 30, 2021)
- Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-042-Youngkin-issued.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares 202 North Ninth Street
Attorney General Richmond, Virginia 23219
804-786-2071
August 23, 2023 Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
The Honorable Glenn Youngkin
Governor of Virginia
Third Floor, Patrick Henry Building
1111 East Broad Street
Richmond, Virginia 23219
Dear Governor Youngkin:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issues Presented
You inquire regarding the validity of several model policies developed by the Virginia Department
of Education as set forth in the Department’s 2023 “Model Policies on Ensuring Privacy, Dignity, and
Respect for All Students and Parents in Virginia’s Public Schools.”! Your request concerns model policies
that address athletics, access to student information, pronoun usage, and access to facilities and activities.
You ask whether these model policies run afoul of federal or state anti-discrimination laws, specifically the
Equal Protection Clause of the Fourteenth Amendment,’ Title IX of the Education Amendments Act of
1972,} or the Virginia Human Rights Act (VHRA).‘ You further ask, in light of this inquiry, whether local
school boards are bound to adopt policies consistent with these model policies.
Response
It is my opinion that the model policies comply with the Equal Protection Clause, Title IX, and the
VHRA, and that pursuant to Code § 22.1-23.3, local school boards are required to adopt policies that are
consistent with them.
Background
As “[t]he Supreme Court of the United States has long recognized[,] ‘[p]ublic education serves
vital national interests in preparing the Nation’s youth for life in our increasingly complex society and for
1 VIRGINIA DEPARTMENT OF EDUCATION, Model Policies on Ensuring Privacy, Dignity, and Respect for All
Students and Parents in Virginia's Public Schools (July 18, 2023) [hereinafter “Model Policies”], available at
https://www.doe. virginia.gov/home/showpublisheddocument/46509/6382529 18535370000.
2.U.S. CONST. amend. XIV, § 1.
320 U.S.C. 8§ 1681-1688.
4 VA. CODE ANN. §§ 2.2-3900 to -3909 (2022 & Supp. 2023).
Honorable Glenn Youngkin
August 23, 2023
Page 2
the duties of citizenship in our [Constitutional] Republic.”” Article VIII of the Constitution of Virginia
governs the provision of public education in Virginia. Although this Article vests local school boards with
general authority over “[t]he supervision of schools in each school division[,]”° that power is not absolute.
Rather, “primary responsibility and authority for effectuating the educational policy” of the Commonwealth
lies with state government, particularly the General Assembly.” Thus, with respect to educational matters,
“(t]he Constitution of Virginia ‘apportions various responsibilities for the creation and maintenance of
Virginia’s system of public education among the General Assembly, the State Board of Education, and the
local school boards.’” As a result, the Supreme Court of Virginia consistently has held that “[s]chool boards
only have those powers expressly granted or necessarily implied by statute.”” Moreover, a school board
may adopt policies only to the extent such policies are “not inconsistent with state statutes... .”!°
In accordance with the “triune scheme” established by Article VIII,'' the General Assembly, with
the enactment of Code § 22.1-23.3, has directed the Department of Education to “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 . . . .”'? Among other “common issues,” the model policies
are intended to address the following topics: compliance with applicable nondiscrimination laws,
maintenance of a safe learning environment for all students; identification of students; student privacy;
participation in sex-specific school activities and events; and use of school facilities.'*
Pursuant to its mandate, the Department issued an inaugural set of model policies in 2021."
Because these model policies “promoted a specific viewpoint aimed at achieving cultural and social
transformation in schools” and did not take into account fundamental and consequential legal “principles
that significantly impact how schools educate students,” the Department withdrew the 2021 model policies
and adopted new model policies, which went into effect on July 19, 2023.'° The revised model policies
were designed to correct the failure of the prior policies to recognize that, although “[i]n our system of
government, many parents delegate [some] authority . . . to state and local school officials[,]” ultimately,
“t]he education of the youth of this [Commonwealth] is the responsibility of the parents of the students.”!
The current model policies therefore expressly acknowledge “the rights of parents to exercise their
5 2003 Op. Va. Att’y Gen. 21, 21 (third and fourth alterations in original) (quoting Hazelwood Sch. Dist. v.
Kuhlmeier, 484 U.S. 260, 278 (1988)).
6 Va. CONST. art VIII, § 7.
7 See VA. CONST. art VIII, § 5(e) (establishing the State Board of Education and granting it authority to effectuate
Virginia’s educational policy, “[s]ubject to the ultimate authority of the General Assembly”). See also VA CONST. art
VIII, § 6 (providing for the appointment of a “Superintendent of Public Instruction,” whose “powers and duties . . .
shall be prescribed by law”).
8 2009 Op. Va. Att’y Gen. 77, 78 (quoting Dennis v. Cnty. Sch. Bd., 582 F. Supp. 536, 543 (W.D. Va. 1984)).
° Sosebee v. Franklin Cnty. Sch. Bd., 299 Va. 17, 25 (2020) (citing Kellam v. Sch. Bd., 202 Va. 252, 254 (1960)).
10. VA. CODE ANN. § 22.1-78 (2021).
12009 Op. Va. Att’y Gen. at 78.
2 Va, CODE ANN. § 22.1-23.3(A) (2021).
'4 Those policies were set forth in a document entitled “Model Policies for the Treatment of Transgender Students
in Virginia’s Public Schools.”
'5 Model Policies, supra note 1, at 1, 5.
'6 2003 Op. Va. Att’y Gen. at 22 (citing Kuhlmeier, 484 U.S. at 273).
Honorable Glenn Youngkin
August 23, 2023
Page 3
fundamental rights . . . to direct the care, upbringing, and education of their children[,]”'” as guaranteed
under state and federal law—rights that are “perhaps the oldest of the fundamental liberty interests
recognized” by the United States Supreme Court.'*
Code § 22.1-23.3 directs “[e]Jach school board [to] adopt policies that are consistent with” these
model policies.'? Accordingly, to comply with this law, school boards may not adopt or maintain policies
that conflict with the duly developed model policies.*° In addition to comporting with this law, however,
school board policies must not conflict with other applicable federal and state law.”! You relate that some
school boards have expressed concerns regarding whether certain federal or state anti-discrimination laws,
namely the Equal Protection Clause, Title IX, or the VHRA, thus preclude the school board from adopting
local policies that reflect the particular model polices about which you inquire. These concerns have
prompted your request, and I will examine your questions accordingly.
Applicable Law and Discussion
In guaranteeing that no state shall “deny to any person within its jurisdiction the equal protection
of the laws[,]”?? the Equal Protection Clause directs that “all persons similarly situated should be treated
alike.”?3 Consistent with this promise, Title IX, with limited exceptions, prohibits discrimination based on
sex in all education programs and activities in federally funded schools at all levels.”4 In Virginia, the VHRA
prohibits, among other things, discrimination in public accommodations on the basis of sex or gender
identity.2> Your inquiry focuses on the application of these laws to model-policy provisions that address
athletics, access to student information, pronoun usage, and access to facilities and activities, specifically
Model Policies H, D, and G. As I outline below, these policies are perfectly consistent with federal and state
law.
Model Policy H — Athletics
Model Policy H provides that, “[f]or any athletic program or activity that is separated by sex, the
appropriate participation of students shall be determined by sex rather than gender or gender identity.”
'7 Model Policies, supra note 1, at 1.
18 Troxel v. Granville, 530 U.S. 57, 65 (2000). See id. at 66 (“[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of
their children.”); Reyna, as next friend of J.F.G. v. Hott, 921 F.3d 204, 210 (4th Cir. 2019) (noting that “there are
decisions that recognize the ‘power of parents to control the education of their own’ children” (quoting Meyer v.
Nebraska, 262 U.S. 390, 401 (1923))); VA. CODE ANN. § 1-240.1 (2022) (“A parent has a fundamental right to make
decisions concerning the upbringing, education, and care of the parent’s child.”).
'9 Section 22.1-23.3(B).
20 See, e.g., 1977-78 Op. Va. Att’y Gen. 369, 369 (noting that school board “regulations must be in harmony with
_ . statutes of the Commonwealth”). Although the model policies, by themselves, do not carry the force of law,
§ 22.1-23.3(B) serves to make them binding on local school boards.
21 See 1977-78 Op. Va. Att’y Gen. at 369.
22U.S. CONST. amend. XIV, § 1.
23 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
24 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal
financial assistance[.]’”).
25 VA. CODE ANN. § 2.2-3904 (2022).
26 Model Policies, supra note 1, at 16.
Honorable Glenn Youngkin
August 23, 2023
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“Sex” is defined as “biological sex.”?” The policy further provides that school divisions may provide
“reasonable modifications” to this policy “only to the extent required by law.””8
As a preliminary matter, I address the suggestion that the Department lacked authority under
§ 22.1-23.3 to address athletics in the first instance. Narrowly reading the statute to prohibit consideration
of athletics is incorrect. The statute directs the Department to “develop and make available . . . model
policies concerning the treatment of transgender students . . . that address common issues regarding
transgender students ... .”°° It further directs that these policies must at the very least “include information,
guidance, procedures, and standards relating to” eight identified topics.° Among those topics is “[s]tudent
participation in sex-specific school activities and events and use of school facilities.”! The statute then
provides: “Activities and events do not include athletics.” The statutory mandate, however, is to develop
policies “that address common issues regarding transgender students.” The list of topics set forth in the
statute is a nonexclusive list that includes required subject matter; it is not an exclusive definition of topics
that qualify as “common issues regarding transgender students.”** Athletics are indisputably a “common
issue[] regarding transgender students.” The Department therefore has discretion conferred by the General
Assembly to address athletics in the model policies even if it is not required to do so.
I turn then to whether Model Policy H complies with the relevant federal and state laws. As with
any sex-based policy, to comport with the Equal Protection Clause, Model Policy H must serve an important
governmental objective and the classification must substantially relate to that objective. The Equal
Protection Clause “guarantees equal laws, not equal results[,]’ and does not forbid state regulations that
“realistically reflect[] the fact that the sexes are not similarly situated in certain circumstances.”*° As the
late Justice Ruth Bader Ginsburg wrote for the Supreme Court, “[pJhysical differences between men and
women . . . are enduring.”’’ The Constitution does not require states to ignore these differences and treat
“things which are different in fact ... in law as though they were the same.””38
The recognition of these differences is particularly relevant to interscholastic athletics, where states
maintain a legitimate and important governmental interest in redressing past discrimination against women
27 Model Policies, supra note 1, at 12.
8 Td. at 16.
29 Section 22.1-23.3(A) (emphasis added).
30 Tq.
31 Section 22.1-23.3(A)(8).
32 Td.
33 Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (noting that “the term ‘including’
is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”); Auer
v. Commonwealth, 46 Va. App. 637, 645-46 (2005) (“[T]he word ‘includes’ is ‘usually a term of enlargement, and not
of limitation’ and therefore ‘conveys the conclusion that there are other items includable, though not specifically
enumerated’” (quoting Fed. Elec. Comm’n v. Mass. Citizens for Life, 769 F.2d 13, 17 (1st Cir. 1985), aff’d, 479 U.S.
238 (1986))). See also 2022 Op. Va. Att’y Gen. 50, 52 (noting that the term “‘including’ followed by a list ‘typically
indicates a partial list’” (quoting BLACK’S LAW DICTIONARY 912)).
34 United States v. Virginia, 518 U.S. 515, 533 (1996).
35 Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979).
36 Michael M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 469 (1981). See also cases cited therein.
37 Virginia, 518 U.S. at 533.
38 Michael M., 450 US. at 469 (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966)).
Honorable Glenn Youngkin
August 23, 2023
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and in promoting equality of opportunity between the sexes.® Given that physical differences provide males
an undue advantage in competing against women in sports, sex-based segregation in athletics bears a
substantial relationship to those interests.° Indeed, states may implement policies that accommodate “the
special [needs] of women.”! Consequently, the exclusion of males from female sports teams does not
violate the Equal Protection Clause.*
Title IX does not demand otherwise. Federal regulations implementing Title IX direct that “[n]o
person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated
differently from another person or otherwise be discriminated against” in school-sponsored athletic
programs."3 Nevertheless, a school “may operate or sponsor separate teams for members of each sex where
selection for such teams is based upon competitive skill or the activity involved is a contact sport.44 “[I]t
would require blinders to ignore that the motivation for promulgation of the regulation on athletics was the
historic emphasis on boys’ athletic programs to the exclusion of girls’ athletic programs... 2-45 “The drafters
of the regulations recognized a situation that Congress well understood: Male athletes had been given an
enormous head start in the race against their female counterparts for athletic resources, and Title IX would
prompt universities to level the proverbial playing field.”“° Accordingly, Title IX generally does not require
sex-integrated sports teams.‘ To the contrary, its purpose is to encourage sex-separate sports teams in order
to address “the historic emphasis on boys’ athletic programs to the exclusion of girls’ athletic programs.’””"®
Indeed, “commingling both biological sexes in the realm of female athletics[] would ‘threaten[] to
undermine one of [Title IX’s] major achievements, giving young women an equal opportunity to participate
in sports.”””*?
Nor does the VHRA’s prohibition against discrimination on the basis of gender identity require a
different result. Model Policy H classifies student-athletes on the basis of their biological sex—not gender
identity. Indeed, Model Policy H draws no distinctions of any kind on the basis of gender identity; rather
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. A policy “can lawfully classify on
the basis of biological sex without unlawfully discriminating on the basis of transgender status.”°? Indeed,
the text of the VHRA demonstrates that the General Assembly necessarily understood the categories of
39 Clark, By & Through Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982); Williams v.
Sch. Dist., 998 F.2d 168, 179 (3d Cir. 1993).
40 Clark, 695 F.2d at 1131. The “substantial relationship” standard does not require that “the [policy] under
consideration must be capable of achieving its ultimate objective in every instance.” Nguyen v. INS, 533 U.S. 53, 70
(2001).
41 Weinberger v. Wiesenfeld, 420 U.S. 636, 653 (1975).
” Clark, 695 F.2d at 1131.
4334 CER. § 106.41 (a).
4434 CER. § 106.41(b).
45 Williams, 998 F.2d at 175.
46 Neal v. Bd. of Trustees of California State Univs., 198 F.3d 763, 767 (9th Cir. 1999).
47 Mercer v. Duke Univ., 190 F.3d 643, 647 (4th Cir. 1992).
48 Williams, 998 F.2d at 175 (also articulating that “‘[a]thletic opportunities’ means real opportunities”).
49 Adams By & Through Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 818 (11th Cir. 2022) (Lagoa, J.,
concurring) (second and third alterations in original) (quoting Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1779 (2020)
(Alito, J., dissenting)).
5° Id. at 809.
Honorable Glenn Youngkin
August 23, 2023
Page 6
“sex” and “gender identity” to be distinct because it separately enumerated prohibitions against
discrimination on each basis.*! In prohibiting discrimination on the basis of gender identity, the VHRA does
just that—prohibits discrimination on the basis of gender identity. Discrimination on the basis of sex is
different from discrimination on the basis of gender identity. Because Model Policy H treats all persons
identically irrespective of their gender identity, it does not discriminate on the basis of gender identity under
the VHRA.
As one court recently opined, transgender girls are biological males and “biological males are not
similarly situated to biological females for purposes of athletics.”°* This stands to reason because a person’s
nonconforming gender identity does not negate the physical differences associated with biological sex,
Therefore, I conclude that Model Policy H’s instruction that sex separation of athletic programs shall be
determined by biological sex rather than gender or gender identity comports with the Equal Protection
Clause, Title LX, and the VHRA.
Model Policy D — Student Information and Identification
To promote parents’ ability “to make the best decisions with respect to their child,” Model Policy
D ensures that parents are kept “fully informed about all matters that may be reasonably expected to be
important to a parent”®’ by prohibiting school divisions from “encourag[ing] or instruct[ing] teachers to
conceal material information about a student from the student’s parent.”°° The policy makes clear, however,
that school divisions will “comply with all laws that prohibit disclosure of information to parents, including
but not limited to Code of Virginia § 22.1-272.1(B) (prohibiting parental contact where student is at
imminent risk of suicide related to parental abuse or neglect).”° Model Policy D further directs, in part,
that school “personnel shall refer to each student using only the pronouns appropriate to the sex appearing
in the student’s official record—that is, male pronouns for a student whose sex is male, and female pronouns
for a student whose sex is female.” ” It also provides, however, that “pronouns other than those appropriate
to the sex appearing in the student’s official record” are to be used “if an eligible student or a student’s
parent has instructed [the school division] in writing that such other name or other pronouns be used.”°8
Model Policy D thus appropriately emphasizes the statutory and constitutional rights of parents and
other legal and constitutional principles that govern how schools educate students. As noted, parents enjoy
a time-honored fundamental right to make decisions regarding the upbringing and education of their
5! Virginia courts “disfavor a construction of statutes that renders any part of the statute useless or superfluous.”
Shoemaker v. Funkhouser, 299 Va. 471, 488 (2021); see also Postal Tel. Cable Co. v. Norfolk & W. R.R. Co., 88 Va.
920, 926 (1892) (“It is not to be presumed that the legislature intended any part of [a] statute to be without
meaning[.]”). Moreover, when the legislature “uses two different terms in the same act, those terms are presumed to
have distinct and different meanings.” Indus. Dev. Auth. v. Bd. of Supvrs., 263 Va. 349, 353 (2002).
2B PJ. v. W. Va. State Bd. of Ed., No. 2:21-cv-00316, slip op. 23, 2023 WL 111875, at *9 (S.D.W. Va. Jan. 5,
2023).
53 Courts recognize biological sex, like race, as an immutable characteristic determined by birth. See, e.g., Frontiero
v. Richardson, 411 U.S. 677, 686 (1973). Gender identity is a trait distinct from biological sex. Bostock, 140 S. Ct. at
1746-47 (stating that “transgender status [is a] distinct concept[] from sex”). Accordingly, “transgender persons fall
into the preexisting classifications of sex—i.e., male and female.” Adams, 57 F.4th at 814.
54 Model Policies, supra note 1, at 3.
55 Td. at 15 (Model Policy D(7)).
57 Td. at 14 (Model Policy D(3)).
58 Td. (Model Policy D(4)).
Honorable Glenn Youngkin
August 23, 2023
Page 7
children.*? Access to important information regarding their “child’s health, and social and psychological
development”® is critical to making those decisions, and schools need to provide, not conceal, such
information. Additionally, 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 means of
addressing students also implicates constitutional rights of teachers that must be respected at school,°!
including rights in the expression of sincerely held religious beliefs.’ The Commonwealth therefore has a
compelling interest in ensuring that its school divisions respect the constitutional rights of parents, teachers,
and students.
Keeping parents informed about “all matters that may be reasonably expected to be important to a
parent” does not trigger any anti-discrimination laws. Not only does Model Policy D embrace the rights of
all parents to be kept informed about all their children’s well-being, irrespective of the protected status of
either parent or child, the policy also instructs school divisions to comply with conflicting laws that prohibit
disclosure when they apply. The model policy’s establishment of a default student-identification rule for
school personnel to follow also raises no legal concerns. Because the model policy ultimately vests the
decision of pronoun reference with a student’s parents, Model Policy D does not discriminate on the basis
of sex; rather, the line drawn by Model Policy D is between students whose parents have instructed the
school division to use pronouns other than those associated with a student’s sex, and those whose parents
have not. 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. Model Policy D in no way “prefers one sex to
the detriment of the other[,]’** and I must conclude that it suffers no infirmity under federal or state anti-
discrimination laws.
Model Policy G — Facilities
Model Policy G requires “[o]vernight travel accommodations, locker rooms, and other intimate
spaces used for school-related activities and events [to] be based on sex,” with “reasonable modifications
_.. to the extent required by law.” © Similarly, every student “shall use bathrooms that correspond to his or
her sex, except to the extent that federal law otherwise requires.”® Again, “sex” is defined as “biological
sex,”°7
59 VA, CODE ANN. § 1-240.1; Troxel, 530 U.S. at 66; Eknes-Tucker v. Governor of Alabama, F.4th, _, 2023
WL 5344981, at *11 (1Ith Cir. Aug. 21, 2023) (noting that “a line of Supreme Court decisions .. . recognized . ..
parents’ liberty interest to control the upbringing of their children” and that “[t]he majority of those cases . . . pertain
to issues of education, religion, or custody”).
6° Model Policies, supra note 1, at 3.
61 See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2422 (2022).
62 Loudoun Cnty. Sch. Bd. v. Cross, No. 210584, 2021 WL 9276274, at 6, 8 (Va. Aug. 30, 2021) (citing
Meriwether v. Hartop, 992 F.3d 492, 509-17 (6th Cir. 2021)).
63 Model Policies, supra note 1, at 15 (Model Policy D(7)).
- W. By & Through Williams v. Skrmetti, 73 F.4th 408, 419 (6th Cir. 2023) (citing Reed v. Reed, 404 U.S. 71,
76 (1971).
65 Model Policies, supra note 1, at 16 (Model Policy G(3)).
66 Td, (Model Policy G(4)).
67 Td. at 12.
Honorable Glenn Youngkin
August 23, 2023
Page 8
The Fourth Amendment protects students’ expectation of privacy in their “persons,” including
privacy in their personal hygiene and in shielding one’s body from view of the opposite sex.® That right is
not diminished simply because another student of the opposite sex identifies as a transgender student.
Securing this right for every student is a significant governmental objective of the Commonwealth.” The
longstanding practice of separating the sexes in intimate settings, including shared sleeping quarters, locker
rooms, and bathrooms, is substantially related to this interest.”1 Accordingly, Model Policy G comports with
equal protection requirements.”
Model Policy G also satisfies Title [X. As with athletics, application of Title 1X permits segregation
of the sexes as appropriate for certain settings. The law expressly allows “separate living facilities [to be
maintained] for the different sexes.”’? The implementing regulations further provide that schools do not
violate the statute when they afford students “separate toilet, locker rooms, and shower facilities on the
basis of sex,” so long as the offered facilities are comparable.” Because Model Policy G falls squarely
within these provisions, I conclude that the policy is not violative of Title Ix.”
Nor does Model Policy G violate the VHRA’s prohibition against discrimination on the basis of
gender identity. Although the overnight accommodation, locker room, and bathroom policies “classifLy]
students on the basis of biological sex,” they do not “facially discriminate on the basis of transgender
status.””6 As with the athletics policy set forth in Model Policy H, because the facility-use policies “divide[]
students into two groups, both of which include transgender students, there is a lack of identity between the
polic[ies] and transgender status.”””
In sum, none of the questioned terms of Model Policies H, D, or G run afoul of the Equal Protection
Clause, Title IX, or the VHRA.”8
68 See, e.g, Henry v. Hulett, 969 F.3d 769, 778 (7th Cir. 2020) (“The privacy interest in one’s body is clearly a
heightened and fundamental one.”); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive of a more
basic subject of privacy than the naked body. The desire to shield one’s unclothed figured from view of strangers, and
particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”); Strickler v.
Waters, 989 F.2d 1375, 1387 (4th Cir. 1993) (recognizing that compelled exposure of one’s genitals to members of the
opposite sex can constitute a violation of constitutional rights); Adams, 57 F.4th at 805. See also MacDonald v.
Angelone, 69 F. Supp. 2d 787, 793 (E.D. Va. 1999) (individuals “have a right to be protected from gratuitous and
unnecessary observation while they use [the] toilet[]”).
69 See West v. Radtke, 48 F.4th 836, 851 (7th Cir. 2022) (the “right to be free from highly invasive intrusions on
bodily privacy by [members] of the opposite sex—whether on religious or privacy grounds—does not change based
on the [other’s] transgender status”).
7 Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 613 (4th Cir. 2020); Adams, 57 F.4th at 804-05.
11 See Virginia, 518 U.S. at 550 n.19 (noting that in, converting a previously all-male university into a co-
educational institution, campus changes may be “necessary to afford members of each sex privacy from the other sex
in living arrangements”).
? See Adams, 57 F Ath at 808.
B20 U.S.C. § 1686.
434 C.ER. § 106.33.
™ See Adams, 57 F Ath at 815.
76 Td. at 809.
7 Td. (some punctuation omitted).
78 | of course, am aware of inconsistent court decisions on some of these issues rendered in other jurisdictions.
See, e.g., Hecox v. Little, F.4th __ (9th Cir. Aug. 17, 2023). These decisions do not bind Virginia, and to the extent
some of these decisions disregard of the ordinary meaning of “sex” as used in the context of the applicable law, I do
Honorable Glenn Youngkin
August 23, 2023
Page 9
In reaching this conclusion, I have determined that the decision of the United States Court of
Appeals for the Fourth Circuit in Grimm v. Gloucester County School Board” does not compel a different
result. Grimm involved an as-applied challenge brought by a former student who, in the face of an “invented
classification” of “biological gender,” had sought to use the public-school bathroom matching the student’s
gender identity.®° In ruling that the school board’s policy, as applied to that student, was not substantially
related to the proffered government objective of protecting student privacy, the Fourth Circuit did not
address athletics, pronoun usage, a parent’s right to information, or any facilities other than the bathrooms
at the former student’s high school.’! Moreover, the Fourth Circuit considered only the proffered
governmental interest of student privacy.®’ Despite expressly acknowledging that school boards do have an
important interest in protecting students’ privacy,* the court found, based on the particular facts of the
student’s high school as established in the record before the court, that the school board had failed to
demonstrate how its policy, when applied to those facts, was substantially related to its purported goal.
Accordingly, Grimm does not impose a blanket rule forbidding sex-separate facilities in all situations, let
alone govern policies related to athletics, access to information, or pronoun usage.
Notably, the Department’s 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 policies instruct school boards to comply with federal law and expressly describe areas where federal
law relates to school facilities provided to each sex. Indeed, 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.®° Other
parts of Model Policy G similarly direct schools to depart from sex-based classifications where law requires
it.’ A model policy that instructs school divisions to follow federal law, including Grimm, cannot possibly
conflict with federal law and Grimm. Model Policies H and D contain similar language.®
Your inquiry regards policies that involve a classification that is not “invented” but instead rooted
in history and tradition, that aim to protect parents’ fundamental right to direct the upbringing and education
of their children, and that require reasonable modifications where the law compels them. As explained
above, the default rules established by Model Policies H, D, and G offend neither the Equal Protection
Clause, Title IX, nor the VHRA. Consequently, these federal and state laws do not preclude local school
boards from adopting the model policies as directed under Code § 22.1-23.3. School boards therefore must
adopt model policies consistent with those developed by the Department.
not find them persuasive. Cf. Adams, 57 F.4th at 807-10, 812-15 (“To say that [a] policy relies on impermissible
stereotypes because it is based on the biological differences between males and females is incorrect.” Id. at 810). None
of these decisions invalidate the model policies discussed herein. Moreover, the model policies themselves account
for any and all federal law that binds Virginia in this area. See Model Policies, supra note 1, at 12, 16.
? 972 F.3d at 586.
8° Id. at 593, 619.
81 See id. at 607; see also id, at 596 (“[T]oday’s question is limited to how school bathroom policies implicate the
rights of transgender students ... .”).
82 See id. at 613-15.
83 Td. at 613.
84 Td at 614.
85 See Model Policies, supra note 1, at 12, 16.
86 See id. at 16 (emphasis added).
88 See id. at 15, 16 (Model Policies D(7) & H).
Honorable Glenn Youngkin
August 23, 2023
Page 10
Conclusion
Accordingly, it is my opinion that Model Policies H, D, and G, as set forth in the “Model Policies
on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia’s Public Schools” that
are now in effect, do not violate federal or state anti-discrimination laws. It therefore is my further opinion
that, pursuant to Code § 22.1-23.3, local school boards are required to adopt policies that are consistent
with these model policies.
With kindest regards, I am
Very truly yours,
Ba
Jason S. Miyares
Attorney General