— The bill — H.R. 734 (118), the Protection of Women and Girls in Sports Act of 2023 — was introduced by Rep. Greg Steube (R-Fla.) several times, but was taken up by the House Education and Workforce Committee for the first time last week in a 16-hour markup. It would amend Title IX, the federal education law that bars sex-based discrimination, to define sex as based solely on a person’s reproductive biology and genetics at birth.

— The measure was recommended by the committee in a vote on party lines and is now primed for a vote on the House floor. While H.R. 5 (118), the Parents Bill of Rights Act, cleared the committee the same day and is slated for a vote in two weeks, House Majority Leader Steve Scalise’s office said they haven’t made any announcements on when they will take up the sports bill for a vote. House Republicans are expected to pass the bill with their slim majority, but it’s not likely that the Democrat-controlled Senate will allow the bill to move.

— The legislation will be a way for the GOP to force Democrats to go on record with their support for transgender students to play sports, a key part of the GOP’s 2022 midterm policy agenda. It is also a direct rebuke of the Biden administration’s proposed Title IX rule, which seeks to codify protections based on sexual orientation and gender identity. The Education Department is expected to unveil its final rule in May, though it said it would make a separate rule for sports.

— Meanwhile, West Virginia has decided to appeal a stay on its transgender sports law to the Supreme Court, marking the first opportunity for the high court to weigh in on the issue. “West Virginians and the American people are animated,” West Virginia Attorney General Patrick Morrisey said at a Thursday press conference. “They know this is a matter of basic, common sense and basic fairness. We believe we’re absolutely correct on the merits. And I know that there’s always a debate as to when you go up to the high court, but … we think it’s justified to make sure that the law that was put in place by the legislature, reflecting the will of the voters, gets back in place very, very quickly.”

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BONAMICI’S BILL OF RIGHTS — Rep. Suzanne Bonamici (D-Ore.) introduced her Bill of Rights for Students and Parents, a Democratic response to the GOP’s Parents Bill of Rights, which is headed to the House floor for a vote in two weeks. “Parental involvement is critical to developing and sustaining high-quality public schools, and we must do all we can to involve parents and break down barriers that prevent or discourage participation,” Bonamici said in a statement.

— The bill, which is supported by dozens of education groups including the National PTA, outlines that a student “should be able to receive a well-rounded education,” and parents and families “should be able to collaborate effectively” with their children’s teachers. Additionally, it dictates that public schools should be “responsive and inclusive,” students should be able to learn in environments “free from all forms of discrimination,” and all students should “receive an education that is historically accurate, reflects the diversity of our nation, and prepares students to think critically and participate actively in a representative democracy.”

— House Republicans unveiled their “Parents Bill of Rights” earlier this month. It would require mandates for school districts to offer teacher-parent meetings, publicly disclose budget materials and allow parents to address the school board — things that are already present in many schools across the country.

— “The previously introduced ‘Parent Bill of Rights’, HB5, completely misses the mark and has discriminatory undertones that distract us from the seriousness of this moment,” the National Parents Union said in a statement. “Pitting parents against parents, parents against teachers, and adults against students does nothing to move us forward.”

BIDEN BUDGET FALLS FLAT WITH CHARTERS — President Joe Biden has proposed a $440 million budget for federal charter school grants, irking advocates after consecutive years of flat funding, Juan reports. The flat funding is a problem for charter boosters concerned about rising inflation that cuts the buying power of nearly half a billion dollars and higher interest rates that swell borrowing costs to pay for facilities.

— The National Alliance for Public Charter Schools is asking Congress to approve $500 million for the programs. “We are disappointed that President Biden is proposing flat funding [for] the vital Charter Schools Program, which has been level funded by Congress since FY2019,” said Nina Rees, the alliance’s president and CEO, in a statement on Friday.

— But charter supporters are also praising a renewed department proposal to bring “greater flexibility” to how the program’s funds are spent. The department’s budget pitch notes a request for flexibility to “adjust” federal charter spending “in response to demand across the program components.” Similar language has also appeared in prior year charter program budget proposals.

— “As in past years, this year’s budget will again include a request of Congress to provide greater flexibility to the Department in its allocation of funds under the multiple authorities provided in ESSA’s Charter School Program,” a department spokesperson told POLITICO in a statement. “The Department is interested in utilizing this flexibility to ensure it can efficiently respond to demand for federal funds from the charter school community.”

PROMISE IN DUAL ENROLLMENT — More high schoolers are taking dual enrollment courses, which allow them to take their classes and simultaneously apply the credits toward a diploma and an associate degree. And while Biden’s college affordability agenda has stalled on Capitol Hill, the two-for-one special could cut the cost of college for many teens as the programs grow in popularity.

— It’s also helping community colleges shore up their enrollment. The two-year institutions saw a 12 percent spike this academic year in these programs. The resulting uptick in dual enrollment students has spurred a small increase in overall community college attendees from the last academic year — a much needed boost after those institutions faced the worst enrollment plunges due to the pandemic.

— Governors in Arizona and Florida, and elsewhere, have been pushing to expand dual enrollment options as a way to streamline the path from high school to the workforce or quicken the path to a bachelor’s degree. Nearly all states have dual enrollment policies.

— Dual enrollment also provides access to courses in welding and other hands-on technical education to help high schoolers build skills that they can apply to a job or a certificate, a path Republicans in Congress have long touted as an alternative to a traditional college.

— Last week, Biden urged Congress to fund what his administration called the Career-Connected High Schools initiative, which would dole out $200 million for programs that align high school and college by expanding access to dual enrollment, work-based learning and college and career advising for students in high school.

CAL’S NOISE COMPLAINT — The People’s Park, a park near UC Berkeley that once hosted iconic protests against the Vietnam War, is now at the center of another public furor: loud parties, POLITICO’s Blake Jones and Matthew Brown report. The university, a state appellate court found, failed to account for “excessive noise” when it considered the environmental effects of building housing for 1,100 students in a park abutting a residential neighborhood.

— The neighborhood group that filed the lawsuit pointed to hundreds of complaints to the city about student parties and even hired a “noise expert” to describe the role of college partying in undergraduate life.

— UC Berkeley might still get the project at People’s Park built, but the legal challenge has set construction back months, if not years. The court ruling — based on a 1970 state environmental law meant to serve as a check on rampant development — has injected new uncertainty into housing plans at California’s public university campuses, many of which are in dire need of housing amid a yearslong expansion.

— Justice Teri L. Jackson worried aloud during oral arguments about a “great deal of social implications” that could stem from a broad reading of environmental rules on noise. But, she said, she was constrained by the law. “Noise is noise,” she said.

— School district sued over handling of student’s pledge of allegiance protest: The New York Times

— Arizona launches hotline for public to report ‘inappropriate’ school lessons: CNN

— WA college-going rate dropped sharply during pandemic: The Seattle Times

— Republicans race to outdo each other on education: The Hill

— Texas families would get $8,000 in tax dollars to send students to private school in sweeping ‘parental rights’ bill backed by Lt. Gov.: The Texas Tribune

The law banning gender affirming treatments prohibits doctors from providing any health care to minors in order “to identify with, or live as, a purported identity inconsistent with the minor’s sex,” that is, the minor’s sex assigned at birth. The law bans the use of puberty blockers and hormone treatments to treat gender dysphoria’s underlying cause, but does not ban the drugs’ use for other treatments.

As of last June over a dozen states were implementing or considering such laws, according to the Kaiser Family Foundation.

The World Health Organization, American Medical Association, American Academy of Pediatrics, and American Psychiatric Association all endorse gender-affirming care as an effective treatment for gender dysphoria among minors. There isn’t any scientific basis for the attack on gender-affirming care, only a religious one, which is entirely unconstitutional.

The ban will force children who take the medication to stop doing so by March 31, 2024.

The bill was mostly approved along party lines, with the exception of the Tennessee House, where three right-wing Democrats voted for the legislation, including Representative Antonio Parkinson (D-Memphis). Parkinson attempted to put the blame on voters, claiming, “My constituents didn’t want it. It’s pretty simple, pretty straightforward. My constituents were like, ‘let these children be children.’ Let them grow up and make that adult decision when they become adults.”

The ban on drag is part and parcel of the demonization of trans people, with the law aiming at legitimizing the far-right claim that drag queens are “grooming” children. At least seven other states are considering similar bans on drag performances, according to PEN America.

Both pieces of legislation followed right-wing propaganda revolving around Vanderbilt Medical Center, where far-right commentators falsely claimed that doctors were performing genital surgeries on minors.

A group of U.S. lawmakers last month met with a prominent transgender activist in Japan while they were in the country.

U.S. Reps. Mark Takano (D-Calif.), Maxwell Alejandro Frost (D-Fla.), Alexandria Ocasio-Cortez (D-N.Y.), Frank Pallone (D-N.J.) and French Hill (R-Ark.) met with Fumino Sugiyama, a former member of Japan’s female fencing team who is now fighting for legal recognition of trans people in Japan. The D.C.-based Maureen and Mike Mansfield Foundation, which organized the congressional delegation that also included a trip to South Korea, arranged the meeting.

“Members of the delegation were very, very impressed with Fumino,” Takano told the Washington Blade last week during a telephone interview.

Frost, who is the first Gen Z’er elected to Congress, on Feb. 24 in a series of tweets praised Fumino and his advocacy efforts.

“One of my favorite meetings in Tokyo was meeting with trans organizer and activist, Fumino Sugiyama,” tweeted Frost. “Japan is still working through passing real anti-discrimination laws to protect LGBTQ+ folks and I felt incredibly inspired by Fumino and his fight.”

“He laid out the struggle and how the community is battling both legal and cultural roadblocks to even be recognized,” said Frost. “I spoke with him about the current fight in Florida and how Gov. DeSantis is targeting LGBTQ+ kids.”

Frost also said he is “working on setting up a virtual meeting between Fumino and a student activists in Florida.”

“I think his story can provide some inspiration for the struggle here,” he said.

He laid out the struggle & how the community is battling both legal & cultural roadblocks to even be recognized. I spoke with him about the current fight in Florida & how Gov. DeSantis is targeting LGBTQ+ kids. pic.twitter.com/vl2Oxb9vEm

— Maxwell Alejandro Frost (@MaxwellFrostFL) February 25, 2023

The trip began on Feb. 20 and ended on Feb. 26.

Takano arrived in Japan before the trip began.

The openly gay man of Japanese descent visited Pride House Tokyo, the country’s first permanent LGBTQ and intersex community center that opened ahead of the 2021 Summer Olympics that took place in Tokyo. 

Takano participated in a “fireside chat” with LGBTQ and intersex Japanese people and expatriots, and met with a Goldman Sachs executive who he said is one of the few prominent people in the country who is out.

“Japan is still, pretty much I would say a ‘Don’t Ask, Don’t Tell’ society, but unlike the United States, Japan as a whole does not have violent homophobia where people are beat up or gay bashed or that kind of thing,” said Takano. “There is harassment and bullying in the schools. People face discomfort in the workplace and … until now it’s not like a coming out kind of society, but it’s not a place where (homosexuality is) criminalized and people suffer violence.”

U.S. Ambassador to Japan Rahm Emanuel also invited Takano to attend a reception with members of the Japanese Diet (legislature)’s LGBT Caucus. (Takano noted to the Blade that none of them are openly LGBTQ or intersex.)

“I got a great sense of where things were, the state of play of this question of nondiscrimination language,” said Takano.

警察官、教師、議員などの公職者。LGBTQI+コミュニティーは多彩であり、みな家族です。そして頼れる存在です。日本は世界的にインクルージョンを擁護しています。連邦議会の議員平等幹部会で共同議長を務めるマーク・タカノ下院議員と共に、日本の国会が民意を反映し、差別に反対すると信じています。 https://t.co/tVDblU0OV1

— ラーム・エマニュエル駐日米国大使 (@USAmbJapan) February 17, 2023

The trip began less than a month after Prime Minister Fumio Kishida’s top aide, Masayoshi Arai, told reporters that he would “not want to live next door” to a same-sex couple and he does “not even want to look at them.” Arai also said marriage equality in Japan would “change the way society is” and “quite a few people would abandon this country.”

Kishida fired Arai.

The prime minister on Feb. 17 apologized for Arai’s comments during a meeting with Pride House Tokyo President Gon Matsunaka and other LGBTQ and intersex activists. Kishida on Feb. 28 nevertheless said he does not feel the lack of marriage rights for same-sex couples in Japan is discriminatory.

Members of the opposition Constitutional Democratic Party this week introduced a marriage equality bill in the Diet lower house. 

Takano noted 20 members of the “hardline” Abe faction of Kishida’s ruling Liberal Democratic Party that former Prime Minister Shinzo Abe led before his 2022 assassination remain the main stumbling block to marriage equality and efforts to ban discrimination based on sexual orientation and gender identity. Takano stressed, however, the activists with whom he spoke in Japan welcome the increased attention around these issues.

“The fact that he’s having to comment on marriage equality is indicative of the Japanese media focusing attention on LGBT issues,” he said, referring to Kishida. “The sense among Japanese queer activists is that keeping the LGBT issue, or LGBT issues on the front page is very much something that works to their advantage.”

Takano further acknowledged Arai’s comments and reaction to them has sparked a renewed debate about LGBTQ and intersex rights in the country.

“He (Arai) really hasn’t suffered a huge consequence for those remarks,” said Takano, noting Arai remains in his post with the Japanese Ministry of Economy, Trade and Industry. “The question in Japan right now is will they just enact a law that is symbolic and checks the box, or will they advance substantive LGBT nondiscrimination protections.”

Takano referenced a Kyodo News poll that indicates 65 percent of people in Japan support legal protections for LGBTQ and intersex people. This figure increases to 80 percent among young people.

“It’s no wonder the activists are saying keep this in the news,” he said.

Takano was with then-House Speaker Nancy Pelosi (D-Calif.) when she led a congressional delegation to Japan, South Korea, Taiwan, Malaysia and Singapore last summer. Takano led a congressional delegation to Japan in November 2021.

“Japan plays such a key role in the Indo-Pacific as America’s most vital ally,” he said. “Japan moving forward in this area of LGBT rights and equality, I believe, will be highly consequential to progress in Asia as a whole.” 

Virginia parents with differing viewpoints sounded off on school policies they say harmed children at Tuesday’s Loudoun County Public Schools board meeting.

One year ago, LCPS passed Policy 8040 to follow Virginia Department of Education guidelines put forth by the previous Democratic administration to protect transgender students. It requires employees to address students by their chosen “name and gender pronouns” and gives students access to the bathrooms, locker rooms and sports teams that match their gender identity. The decision sparked a backlash among parents, particularly because it did not require parents to be notified or approve of changes made to their child’s gender identity.

Several parents came to the meeting Tuesday to demand schools comply with new guidelines released last month by Gov. Glenn Youngkin, R., which says parents must sign off on changes to their child’s gender identity and assures accommodations will be made. It also separates sports by biological sex.

“I implore you to adopt Gov. Youngkin’s new Model Policy in place of existing Policy 8040. The fact that parents have to advocate and fight for their parental right is absolutely absurd,” Michelle Warner, a mother of two Loudoun County students told the board. 

VIRGINIA GOV. YOUNGKIN DEFENDS TRANSGENDER POLICIES AFTER STUDENT PROTESTS: PARENTS WILL NOT BE ‘EXCLUDED’

“LCPS seems to think they are better equipped to discuss sexuality, feelings, body image, morals and such over their own parents,” she continued.

Another parent, Abbie Platt, urged the board to “honor” the new policies, after she tearfully shared how her young boys were forced to use the bathroom while “little girls” watched them last year. “There are obvious challenges with what happened last year… Do the right thing,” she told the board.

Amy Paul read an excerpt from a novel she said was currently in six public elementary schools called “It Feels Good to be Yourself.” She blasted the book as “propaganda” that “encourages” young children to question their gender.

Parents Clint and Erin Thomas likened the board to a “cult” who uses “disassociation from the family, love bombing and indoctrination” on children.

CONSERVATIVE COMMENTATOR ACCUSES LOUDOUN COUNTY SCHOOL BOARD OF BEING ‘CHILD ABUSERS’

“This board thinks you’re part of the problem, which means they need to protect your child from you,” he warned fellow Loudoun County parents.

Other parents and educators pushed back against these claims and urged the board to continue with Policy 8040.

Brenda Bengston, who taught in the Loudoun County Public School district for 31 years, said the parent movement was “all political” and had become a “training ground” for attracting media attention.

She defended the transgender policy to Fox News Digital, saying teachers had the students’ best interest at heart. “We need to be interested in our students and not what we have as a bias, to bring it in with us,” she said. The former teacher said her role was to “welcome” students, not question them. 

MARYLAND STATE SENATOR SPEAKS OUT AFTER STUDENT RAISES CONCERNS ABOUT MIXED-GENDER LOCKER ROOMS

Bengston said the rules were necessary because some students “don’t feel like they can talk to their parents.”

Fellow supporter and longtime Loudoun County resident Tammy Cummins agreed that not informing parents was the right move because “Some homes are not safe. Unfortunately some people feel that every parent is a good parent. But we know that is not true.”

She shared about seeing abused children in her practice and recounted how she observed many homeless youth in the area were LGBTQ. 

Cummins praised students for being “way ahead of their parents in accepting that transgender students are here to stay.” She compared the treatment of transgender-identifying students to how “lesbian, bisexual and gay” students were treated “20, 30 years ago.”

LOUDOUN COUNTY PARENTS HAMMER SCHOOL BOARD, JUSTICE DEPARTMENT AS CONTROVERSIES CASCADE

Kerry Kidwell, a parent of two teenagers told the board that children are “young individuals not our property.” She said Youngkin’s guidelines would make school “less safe.”

She warned about transgender kids being “emotionally abused” by their parents. “It’s normal for parents to want their children to share with them, I certainly do, but let’s trust the children who tell us that it’s not safe to do so.”

Loudoun County parent and executive director of Fight for Schools Ian Prior argued it wasn’t the school’s job to socially transition kids. 

Speaking to Fox News Digital, he warned the next steps after socially transitioning were puberty blockers, cross-sex hormones, mastectomies, surgery and other health issues. “For them to take parents out of that discussion, its extremely concerning and the government should not be in that role.”

Canadian activist and father Chris Elston, better known as “Billboard Chris” because he travels across North America wearing signs protesting gender-affirming surgeries and puberty blockers for minors, also showed up at the LCPS meeting. He told Fox News Digital that this wasn’t a political issue and that parents on both sides he speaks to don’t want their kids “sterilized.” He condemned the school board for trying to “hide” the issue from parents.

“We have to put a stop to this,” Elston said. “What do we say to our kids when an adult wants to keep something secret from their mom and dad? For all of history we’ve known this as wrong. But now the schools are pushing this as policy? It’s totally insane.”

FLORIDA COUNTY SCHOOL BOARD MAY REVISE POLICY AFTER TEACHER CLAIMS OVER 100 BOOKS VIOLATED STATE LAW

Elston argued that schools were pushing this “social contagion” on kids to not accept the body they were born in and likened it to abuse.

“What an abusive thing to say to a child, that they might be born in the wrong body because they might feel like a misfit right now… They are beautiful and perfect the way they are. That’s the message of true acceptance,” he said.

The school board has not indicated if they will follow the governor’s guidance. When reached for comment, the LCPS board referred Fox News Digital to a statement on their website that read in part “LCPS is carefully considering the model policies and whether they require any changes to LCPS policies in order to comply with Federal and State law. LCPS wants to assure our families that we will continue to provide a learning environment that is safe, welcoming, affirming, and academically rigorous for all students, regardless of the impact of the 2022 Model Policies.”

The school board has previously defied the Republican governor’s orders when it came to mask mandates.

LOUDOUN COUNTY PUBLIC SCHOOLS HIT WITH LAWSUIT FOR ‘MORAL CORRUPTION OF CHILDREN,’  PARENTAL ‘VIOLATIONS’

Parents against Policy 8040 were doubtful the board would comply with the governor’s order.

“Governor Youngkin just passed new guidance telling the entire state of Virginia to stop doing this, but they’re ignoring it, and they’re going to keep hiding this from parents.” Elston added, “They’re not going to follow it.” 

Clint Thomas stated, “I suspect this is going to be a continued board that rejects the governor’s mandate. I suspect most counties in Virginia will actually comply with that just like they complied with Northam’s guidelines earlier. So we’re hoping that takes place.”

He added, “But I’m expecting more lawsuits and more battle in that area.”

Thomas, along with 11 other parents, are the plaintiffs in a lawsuit by America First Legal against the school board last June that demands transparency about how the transgender policy came to be.

CLICK HERE TO GET THE FOX NEWS APP 

The Northern Virginia suburb about 30 miles outside Washington D.C. has been the home to several controversies in the past two years, including accusations they covered up a sexual assault by a boy wearing a skirt.

The parent protests across the nation over critical race theory, mask mandates, low academic standards, and equity and inclusion curriculum in schools, has garnered attention at the federal level. 

This article was co-authored by Ashlee Nealon, Paralegal, Sydney.

Continuing our series of articles on the tension between the protection of transgender rights and competing interests, here, we focus on the Australian perspective and how protection of transgender rights intersects with the implied right of freedom of political communication and anti-discrimination provisions for religious beliefs.

Current position

Protections against discrimination in the workplace in Australia are covered by a series of legislation, with protection covering ‘gender identity’ embedded in the Sex Discrimination Act 1984 (Cth) (SDA) and across the breadth of corresponding state and territory legislation.

Under the SDA, it is unlawful for an employer to discriminate against an employee for their sexual orientation, intersex status and gender identity, where employers are also vicariously liable for the discriminatory acts of employees. Most relevantly, gender identity means, “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”. This protection is extended to agency workers and contractors. Additionally, protections for sexual orientation in the SDA are adopted into the Fair Work Act 2009 (Cth) (FWA).

The protections

Where a transgender individual (‘trans’ is adopted in this article) is covered under the SDA in respect of their gender identity, they have the right not to be subjected to:

• Direct discrimination: i.e., where an individual trans person is treated less favourably because of the person’s gender identity.
• Indirect discrimination: i.e., where conditions are imposed, or proposed to be imposed, or are a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the trans person.
• Harassment: i.e., where an individual trans person is the recipient of an unwelcome sexual advance, unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature (including verbally or in writing), where a reasonable person would have anticipated the possibility that the trans person harassed would be offended, humiliated or intimidated.
• Victimisation: i.e., where an individual trans person is subjected to, or a perpetrator threatens to subject them to, detriment on the grounds that the individual has made a complaint, or proposes to make a complaint or commence proceedings, such as under the SDA for harassment or discrimination (or where the perpetrator of the victimisation believes the trans person has done so).

Freedom of speech and freedom of religious belief

In Australia, rather than a personal right derived from statute, such as is found in the UK Equality Act (2010), there is a reliance on the doctrine of implied freedom of communication and political communication (Implied Right) drawn from the Constitution of the Commonwealth of Australia 1901, (Constitution).

In addition and under specific circumstances, employees may also seek recourse for discrimination in the workplace for their religious and/or political beliefs, such as for adverse treatment, or termination, under the FWA (FWA Protections), and corresponding state and territory legislation.

Relevant updates and public sentiment

Given there is no personal right to freedom of political communication, guidance as to the reach of the Implied Right for statutory employers can be taken from the Federal Court case, Chief of Defence Force v Gaynor [2017] (Gaynor), albeit applying different legislation.

When Mr Gaynor was terminated from the army reserve after making abrasive social media comments such as “I wouldn’t let a gay person teach my children and I am not afraid to say it”, the test applied was essentially whether the statute relied upon (the Defence (Personnel) Regulations 2002 (Cth)) to terminate Mr Gaynor’s service could, suitably, necessarily and on balance, impose a restriction on the Implied Right. The full court of the Federal Court decided it could.

Gaynor has been followed more recently, with the then Federal Circuit Court of Australia (FCCA) reaffirming that the freedom to communicate is capable of being protected at law, where the Implied Right operates as a freedom from government restraint, rather than a freestanding personal right.

The protections afforded under the SDA for gender identity (and resultant employer policies produced to enforce such protections) can conflict with the FWA Protections. Protracted commentary about this conflict came to a head in 2019 with the contentious, and very public debate, when Israel Folau filed an application to the FCCA claiming his contract with the Australian Wallabies rugby team was unlawfully terminated following his anti-gay and anti-trans social media posts. Rugby Australia alleged the posts, such as that “hell awaits” gay people, went against their code of conduct.

We don’t yet have definitive case law on how to deal with this intersection of the protection of trans rights and the FWA Protections, as most matters arising from this conflict, such as Folau’s claim, settle.  However, we anticipate that the Fair Work Commission and the courts, presented with circumstances similar to those of Bailey or Forstater, would carefully balance these nuanced protections, and as usual, any decision will turn on the specific facts.

Also hotly debated in Australia was the Religious Discrimination Bill 2022 (Bill), originally introduced by the former government in 2021, which would have provided statutory protection for freedom of religious belief. Highly contentious was the ‘statement of beliefs’ clause enabling individuals to make statements that could not be discriminatory under Australia’s suite of anti-discrimination legislation, with the only caveat based upon the intent of the statement maker (which had to be in good faith, without malicious intent) rather than the perception of the person receiving the discriminatory statement. Under the current Labor government, this Bill is unlikely to be reintroduced.

Gender affirmation leave

Paid leave for gender affirmation in Australia has gained recent attention with unions lobbying, as there is no statutory entitlement, for paid gender affirmation leave to be incorporated into Enterprise Bargaining Agreements (agreements on terms and conditions of employment between employers and their employees).

In the private sector, gender affirmation leave is also being adopted by household names who are promoting their new or increased gender reaffirmation leave policies such as Coles and Australia and New Zealand (ANZ) Banking Group Limited announcing policies this year, joining Telstra and Zurich in 2021, the Australian Broadcasting Corporation in 2019, all following Woolworths and Westpac, who have had gender reaffirmation leave policies in place since 2018.

Comment

Especially with the prolific use of social media and individual empowerment to express personal opinion online in the public arena, reviewing your business’ social media policies, bullying and harassment policies, including by giving specific examples of unacceptable behaviour and repercussions for discriminatory statements is timely given current Environmental, Social and Governance sentiment (additionally because the employer can be held vicariously liable and this is also of relevance to insurers).

There are no statutory entitlements to leave for gender affirmation, if this is important to your business’ ethos, you can incorporate this type of leave into your policies, where paid and unpaid leave can cover medical appointments, surgery, hormone appointments, and time taken to update legal documents. 

Related items:

The recent controversy related to transgender policies in Virginia schools made its way into a congressional race in Northern Virginia as the two candidates weighed in with their thoughts on the issue Sunday night.

“That right belongs to the parents,” said Republican Hung Cao.

Cao is challenging Democratic Rep. Jennifer Wexton in next month’s election in Virginia’s 10th Congressional District, which includes Loudoun County and parts of Fairfax and Prince William counties.

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Cao said he agreed with Republican Gov. Glenn Youngkin’s proposed policy changes for the treatment of transgender students, which would require parental signoff on the use of any name or pronoun other than what’s in a student’s official record.

“A school can’t even give a kid an aspirin, but you’re saying that school can decide what sex your child is?” Cao said.

During a debate Sunday, Wexton told Cao that she believed Youngkin was using transgender students as “political pawns.”

“This is an extremely vulnerable population,” Wexton said. “Those kids could be vilified even further.”

Youngkin’s proposed changes say that student participation in certain school programming and use of school facilities, such as bathrooms or locker rooms, should be based on their biological sex, with modifications offered only to the extent required under federal law.

The proposal, which is currently open for public comment, marks a sharp departure to guidance that was first issued in 2021 during Democratic Gov. Ralph Northam’s administration.

Those guidelines said that schools should let students use names and gender pronouns that reflect their gender identity without “any substantiating evidence.”

Youngkin’s proposal led to protests last week, with student activists holding a number of school walkouts.

Aerial footage from a news helicopter showed hundreds of students protesting outside two Prince William County high schools.

Protests involving hundreds of students took place elsewhere across Northern Virginia and in the Richmond and Hampton Roads regions.

At McLean High School, more than 300 students walked out of classes, chanting, “Trans rights are human rights,” and, “D-O-E (Department of Education), leave us be!”

The Associated Press contributed to this report.

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