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No standing to challenge school transgender policy

Virginia Lawyers Weekly//August 30, 2021

No standing to challenge school transgender policy

Virginia Lawyers Weekly//August 30, 2021

Where the Virginia Department of Education developed a guidance document containing model policies for local school boards to use when adopting policies for the treatment of transgender students, plaintiffs lack standing to sue because they have not been aggrieved by the model policies.


Recently enacted Code § 22.1-23.3(A) requires the VDOE to develop model policies concerning treatment of transgender students in the public schools and further requires local school boards to adopt policies consistent with the VDOE model policies.

VDOE developed and published model policies. VDOE received more than 9,000 comments. After considering the comments, VDOE adopted model policies and guidance commentary.

“The Christian Action Network and two families whose children attend public schools in the City of Lynchburg filed this action challenging the adoption of the model policies by VDOE, which was later consolidated with another action initially filed in the Circuit Court for the City of Richmond by the Family Foundation, Founding Freedoms Law Center, and a family whose children attend public schools in Hanover County.

“They contend that the model policies constitute a regulation rather than a guidance document, and that VDOE failed to comply with the Administrative Process Act’s requirements for the adoption of a regulation. …

“Alternatively, they argue that, even if the model policies constitute a guidance document, VDOE did not adequately respond to their comments as required by the Administrative Process Act. In addition to the alleged procedural flaws, the appellants allege various statutory violations, such as VDOE’s alleged failure to comply with the statute prescribing the creation of the model policies as well as other statutory violations relating to parental rights and name changes.

“The appellants also assert constitutional concerns relating to free speech and the free exercise of religion.”

VDOE’s motion to dismiss is before the court.


“The Court first addresses the appellees’ [VDOE’s] argument that the appellants lack standing to challenge the model policies. …

“[O]ne must be aggrieved by a guidance document to have standing to challenge the guidance document, and one must be affected by a rule or regulation to have standing to challenge the rule or regulation.

“The appellants do not argue for a distinction between being affected by and being aggrieved, and the terms appear to convey the same or a substantially similar meaning. Thus, whether the model policies are regulations or guidance documents, the appellants must be affected or aggrieved by them to have standing.

“The Court finds that the model policies are a guidance document as defined by Va. Code § 2.2-4101. They were developed by VDOE to provide information and guidance of general applicability to the various local school boards to interpret or implement Va. Code§ 22.1-23.3. Thus, in order to have standing to challenge the model policies, the appellants must be aggrieved. …

“VDOE contends that the appellants are not aggrieved by the model policies, which are directed not at the appellants but at the local school boards, which have flexibility to fashion policies consistent with the model policies. VDOE argues that the appellants can only speculate as to what policies, if any, the various school boards will develop.

“In these cases, the appellants do not have standing to challenge the model policies. Their dissatisfaction with VDOE’s response to their comments does not create an immediate, pecuniary, or substantial interest in this litigation, but only a remote or indirect interest.

“They have not identified or alleged any personal or property right, legal or equitable, they have been denied. They have not identified any burden or obligation imposed upon them different from that suffered by the public generally.

“Instead, their concerns are indirect, advancing a perceived public right, and anticipating a public injury that may or may not occur. They do not claim that the model policies apply to or have had an effect upon them, nor do they assert that their particular school boards have adopted the model policies or any policies consistent with the model policies.

“Instead of being directed to the appellants, the model policies are directed to local school boards, which have their own constitutional authority and responsibility. ‘The supervision of schools in each school division shall be vested in a school board.’ …

“Because the model policies are directed only to school boards, they cannot affect or aggrieve anyone other than the school boards. The model policies cannot affect or aggrieve someone if the local school board has already adopted similar policies before the development of the model policies.

“They would not affect or aggrieve someone if the local school board, despite any potential repercussions, declines to act on them. Thus, the model policies do not affect or aggrieve the appellants, and the appellants will remain unaggrieved  and unaffected absent actions related to the model policies taken by school boards.

“Finally, the Court finds no merit to the appellants alternative assertions that they have taxpayer/citizen or representational standing. The deficiency in the claim of taxpayer standing is that the appellants are not challenging the legality of an expenditure. The deficiency for representational standing is that the organizations have not shown that they have a member with standing.”

The court dismisses the consolidated cases for lack of standing.

The Christian Action Network, et al. v. Virginia Dep’t of Education, Case No. CL 21000282-00, July 27, 2021, 24th Circuit Court (Watson). Melissa A. Charnes, Deborah A. Love, James D. Fairchild, James A. Davids, Joshua A. Hetzler, David W.T. Carroll for the parties. VLW 021-8-098, 6 pp.

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