Christian and conservative political activists gathered in Chesterfield County this week to push the school board to approve Governor Glenn Youngkin’s transgender student policy.
Chesterfield is one of a number of school districts that have not passed the policy that transgender students and their parents say violates their rights. But that hasn't stopped conservative activists from seeking broad protections for Christian students and teachers in the face of recent Supreme Court of Virginia, or SCV, precedent.
“Chesterfield County Schools are currently in violation of Law,” Josh Hetzler, legal counsel with the conservative Founding Freedoms Law Center, said earlier this week at a protest ahead of a Chesterfield School Board Meeting.
Chesterfield County passed former Governor Ralph Northam’s inclusive trans policies back in 2021, but they have not voted on Youngkin’s.
Hetzler and his colleagues at the Family Foundation have been pressing -and threatening legal action- against school boards for failing to pass Youngkin’s policy. They say Youngkin's policy forbidding trans students from using the restroom, playing sports or using pronouns aligned with their gender identity protects their religious freedom.
“It’s infringing on people’s speech, compelling people to use certain pronouns,” Hetzler told the crowd.
Much of the current fight over trans rights comes in the shadow of late-2023 SCV precedent which found West Point, Virginia's School Board violated the religious freedom of French teacher Peter Vlaming after he was fired for refusing to use the preferred pronouns of a transgender student.
The student’s parents approved of the transition, but SCV Justice Arthur Kelsey found last year “no government… can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs”
Among elected officials supporting the push was western Chesterfield-area state Senator Glen Sturtevant.
“We want make sure boys are playing on boys' sports teams and girls are playing on girls' sports teams and that boys are not in girls locker rooms or bathrooms,” Sturtevant said to cheers from the crowd.
Debate over transgender students' participation in sports and bathroom use has become a hotbed for Christian activism, but it's fared less well in federal appeals courts that govern Virginia.
Even Youngkin’s policy acknowledges Gavin Grimm’s 2020 Fourth Circuit Court of Appeals win which found trans students like him had a right to access bathrooms aligned with their gender identity. On the sports front, the same appeals court overturned West Virginia’s ban on trans girls playing sports earlier this year, though the ruling was narrow and dealt with a student who had been on puberty blockers and identified as female for years.
Virginia Attorney General Jason Miyares has since joined West Virginia in appealing the ruling to the U.S. Supreme Court.
"Allowing biological males to compete against biological females undermines decades of progress and is simply unfair to women and girls," he said in a statement Thursday.
But, on Thursday, a federal judge in Richmond sided with a trans 11-year-old girl who sought to play tennis in Hanover County. Their school board passed a version of Youngkin's policies in 2022 and sought to use them to block the unnamed girl's participation.
A copy of the order was not yet available.
Another Chesterfield-area legislator, Senator Gazala Hashmi is supportive of keeping Northam's inclusive policy. She said the school board was using it to protect some of the school system’s most vulnerable students.
“The school board has a responsibility to serve all students and that includes our trans children,” she told Radio IQ.
Local teacher and parent Caitlin Weston has a 10-year-old trans daughter in the school system. At a Chesterfield County School Board meeting after the Family Foundation protest, she thanked the board for keeping Northam's policy after pointing to the increased risk of suicide among LGBTQ youth.
“It is very simple: continuing to support the students in the way you have been you will continue to save lives,” Weston said.
Chesterfield County isn’t alone in defying the governor. Richmond City explicitly rejected the policies in 2022. And Fairfax County similarly refused to pass the measure, though it currently faces litigation relating to the use of Northan's policy.
In that dispute an unnamed student claimed the school's trans inclusive policy violated her Catholic beliefs. In July the claims were narrowed by a judge in line with Vlaming v. West Point decision.
“We are pleased with the court’s decision recognizing that students can, in fact, challenge unconstitutional policies implemented by school boards in Virginia," a spokesperson for America First Legal, AFL, who's representing the student, told Radio IQ. AFL is run by former President Donald Trump advisor Steven Miller; the firm was founded to "oppose the radical left’s anti-jobs, anti-freedom, anti-faith, anti-borders, anti-police, and anti-American crusade."
"We look forward to continuing to work on behalf of our client,” AFL said in an email.
Virginia Beach's school board had elected not to pass Youngkin's policy until a lawsuit was filed last year.
Notably, the policy they passed considers itself "revised," and bases a student's gender identity on what's in their official student record. A parent must submit a birth certificate or a court order in order to have that gender identity amended.
Among claims in the original Virginia Beach suit were requirements under a 2020 law passed by Democrats which require school boards to pass policies that align with guidance from the state's Department of Education, DOE. Youngkin's DOE updated the policy, replacing Northam's trans-inclusive sections with those favor students of faith, in 2022.
Requests sent to the Virginia DOE for a total number of school divisions that have adopted the policy were not returned.
The Virginia Constitution gives broad authority to school boards to "supervise" schools in their district, possibly absolving localities of the 2020 law. But the Virginia Beach dispute was dismissed after the new policy was passed and no final legal determination was reached.
And in a dissent to the Vlaming majority, Supreme Court of Virginia Justice Thomas Mann compared the majority’s use of faith to Loving v. Virginia which made interracial marriage illegal in the Commonwealth.
Back in 1966 a unanimous SCV affirmed the conviction of Richard Loving and his wife Mildred for their then-illegal, marriage.
“Almighty God created the races . . . and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix”The unanimous Supreme Court of Virginia in Loving v. Virginia, 1966
Mann said the majority's ruling in Vlaming created a "sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either."
The judge wrote Virginia's founding fathers may have failed to recognize the "rights of marginalized and enslaved people," but they had the "foresight to understand the ever-evolving nature of humankind.”
When asked about his support for Vlaming after being compared to Loving, Founding Freedoms Law Center attorney Hetzler told Radio IQ the Supreme Court of Virginia ruled 6-1 on the issue, and that “very firmly affirmed the rights of teachers.”
It took almost a decade, but the US Supreme Court eventually struck Virginia’s anti-miscegenation law in a unanimous ruling.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
