Transgender policy debate continues in the BOV

Editor's note: Links to a video, certified transcript and documents from the Board of Visitors (BOV) meeting, to include public comments submitted to the BOV by faculty, staff, parents and others on the transgender topic are available in the online version of the article at www.cadetnewspaper.org On Nov 30, 2023 the full Virginia Military Institute (VMI) Board of Visitors (BOV) discussed the VMI proposed transgender policy and procedures first briefed to the BOV Executive Committee (ExCo) on Oct 31, 2023 as previously reported in The Cadet. That article is available in the Nov. 17, 2023 edition of The Cadet. BOV President Mr. Thomas Watjen '76 opened the discussion by describing the situation as "a very complex set of issues that we have to sort of navigate ourselves through." Mr. Watjen told the BOV "the executive committee (ExCo) gave us some pretty strong feedback that we need to do more work. That we shouldn't, not that we weren't being hasty, but we needed to do more work to better understand both the operational side of this decision and the legal side of that decision." He then turned the discussion over to Maj. Gen. Wins '85 for an update. Maj. Gen. Wins informed the Board the feedback he received from the Board president was to lay out the issue in such a way that the Board could see it in terms of a set of choices and the risk associated with those choices based on a couple of different scenarios. Maj. Gen. Wins did not give any indication or elaborate on what those scenarios were to be, but the Commandant, Col. Bogart '81, was tasked to work on them. Maj. Gen. Wins also asked Mr. O'Leary '90, Virginia assistant attorney general assigned to VMI, "to go through the existing law, both state and federal, and the existing model policies and any case law that might be out there with respect to the acceptance of transgender students and how that's applied and be prepared to brief the Board in January." Maj. Gen. Wins then plans to put the working draft of the Transgender policy before the Board for approval, through the Military Affairs Committee, with the adjustments to General Orders 13 and 16, and the draft of the Standard Operating (SOP) procedures. BOV member Jim Joustra '76 stressed to the group how difficult it is to be a Cadet at VMI and that the rigor is meant to build strong leaders. He raised the concern, based on his own research, from what he described as "the incredibly high percentage of attempted suicides among transgender persons and the VMI environment could be very challenging to them". He expressed his hope VMI would engage experts in this field to help develop those policies and procedures "at the very beginning." He reminded the Board that, as representatives of the state, any policy developed needs to ensure "safety exists for all Cadets and anyone that's entering our system". He concluded by stressing "We have to look at the entire Corps and what's good for the Corps. And we also have to weigh the rights of the individual that is considering applying to enter this environment." Stressing any decision should be based on the law and "what we think is best for VMI and for our environment going forward." As for the potential for legal challenges to any alternatives to the proposed policy and procedures raised by Maj. Gen. Wins and Mr. O'Leary in the ExCo, Mr. Joustra was clear that after developing a policy that is best for the VMI experience, and especially the Corps of Cadets, "if that is challenged by the law, then we fight that battle going forward all the way to the Supreme Court if we have to." Given the Cadet Counseling Center (CCC) currently lists only one licensed Professional Counselor and an Office Manager to service the entire Corps in their official online office profile, Mr. Joustra's concerns appear valid as potential budgetary and other implications to increase the capability required at least in this area. During the previous ExCon presentation Maj. Gen. Wins stated the Corps agrees that going by self-declared gender identity would not be disruptive to the Corps. Following publication of that first article, The Cadet was not able to determine the actual cadets who represented the Corps in the working group. Cadets also questioned who represented them as the large majority of those who contacted The Cadet only learned of the proposed transgender policy by reading The Cadet. Parents also raised questions to The Cadet concerning the Parents Council representatives in the working group as noted in Col. Bogart's ExCon presentation. As with Cadets and alumni, the parents who contacted The Cadet and The Cadet Foundation also only learned of the proposed policies and procedures from The Cadet's writings. Maj. Gen. Wins did provide the identity of the population who represented the Corps for his statement to the ExCo that going by self-declared gender identity would not be disruptive to the Corps. Maj. Gen. Wins told the BOV, "we clearly talked about the level of risk. We talked about the involvement of Cadet input that had taken place predominantly from members of the Cadet Corps who are... or have identified themselves as part of the LGBTQ [Lesbian, Gay, Bi-sexual, Transgender, Queer] community." [emphasis added] Maj. Gen. Win's statement indicates the administration-selected members of the LGBTQ community within the Corps spoke for the overall Corps in agreeing to the draft policies and procedures. The Cadet is currently attempting a survey of the entire Corps to develop a statistically valid determination of the entire Corps' views and questions on the proposed policies and procedures. The survey is available online at: https://www.surveymonkey.com/r/transvmi. BOV member Mr. Ernie Edgar '87 raised a question on the short timeline facing the Board in finalizing the policy and procedures. "What I'm hearing this morning," said Mr. Edgar, "suggests that we basically have the spring to go from wherever we are today to a finished product. Given that there's the possibility that a transgender young person is in the application and admissions phase this year. We wanna have time for the administration and the Corps to be prepared to matriculate that potential Cadet come next August. So what I'm hearing is this is gonna be kind of a sprint between, the briefing from Pat [O'Leary] at the January meeting, and I would say just, I'm throwing a dart out there, but the latest would be June of 2024 to have basically all this locked into place." Maj. Gen. Wins confirmed the short timeline, but stated the real challenge was not in developing the policy and procedures, but implementing them. He noted the administration was not "starting from scratch" but started using previous work on transgender policy started in 2018. None of the records provided to the BOV and made available to the public to date by VMI through FOIA or other means disclosed what those original policies were. BOV Member Mr. Teddy Gottwald raised additional concerns on the Board's process as well: I have a few comments on the board's process here. At the executive committee meeting, we were given a set of policies and procedures that we were told were based on an analysis of the law and on the state's model guidelines. And what's, what became clear is that the proposal that was put forward was not consistent with the state's model guidelines and the full analysis of the law. That work has not been done. So we were presented with a proposal that's at one end of the spectrum, at one extreme end of the spectrum. I think it'd be a mistake for us in January to either in committee or at the full board to debate what's being proposed in the policy and procedures. What we need to do is we've got to start with an analysis of the law, and we've gotta look at a range of options and risk associated with those options, legal risk and risk to changing the nature of VMI and the Corps. We were not presented with a range of options. We were presented with one option at the extreme end of the range. So when the board takes this up, we need to start with that analysis of the law, the options, the range of options, then whether it's in the executive committee or Cadet and Military Affairs, don't look at that policy, look at the issues. There's only a handful of really critical issues here and the issues really range around where people room, what showers, what locker rooms, what bathrooms they use, what uniforms they wear. And let's discuss how we the board wanna answer those questions. It gets back to, do we want those decisions based on biological sex or at the other extreme, which is what was being proposed; personal choice, on the part of the Cadets. So let's take up those issues. Let's look at the options available to us on those issues, the risks associated with it, both legal and operational. And let's provide that feedback to the administration. And then, and only then, talk about a policy and procedures that are consistent with that input. Maj. Gen. Wins responded the administration was "picking up" the work previously started on the policy, this time stating it was "shelved back in 2013", not 2018 as he previously stated, and the administration will first have Mr. O'Leary look through existing federal law, existing state law, and existing cases to develop a legal summary. With that legal brief, the working group will lay out various different scenarios with different degrees of risk in terms of the choices VMI might make in the shaping of the policy and how the Institute would assume more and more graduated risk. Mr. Watjen added, and Mr. O'Leary agreed, that Mr. O'Leary would have more to say on the issue, but only in the closed session not open to the public. Mr. O'Leary raised points he stated were inaccurate regarding his involvement in developing the proposed policy and procedures as well as if they were based on Governor Youngkin's model guidelines for transgender students. "And there's just two points I'd like to clarify", stated Mr. O'Leary. He minimized his role and participation in developing the draft policies and procedures, instead placing responsibility on Col. Bogart. "Number one; that policy that was advanced by Colonel Bogart, who did most of the work on it," stated Mr. O'Leary. "I was asked to opine on it as to whether or not it comported with existing law, which I did. It was a draft policy, it was advanced for the discussion of the Board only. It was not there for action." Next, Mr. O'Leary directly challenged statements the policy and procedures developed by Col. Bogart complied with the model guidelines. "And I don't recall anybody making any representations that it comported with the model policy.," stated Mr. O'Leary. "The model policy on its face isn't applicable because it applies to K through 12." Again Mr. O'Leary stated further discussions would be available in closed session. C;osed sessions are not open to the public. Mr. Gottwald then challenged Mr. O'Leary's statement that no one represented to the Board the draft policy and procedure complied with Governor Youngkin's model guidelines. "Go back and look at the material that was presented, the preamble, the right up front. It said it was consistent with state model guidelines." Mr. O'Leary, deferred any further discussion of the alleged misstatements and misrepresentations to the closed session where they would not be disclosed to the public or on the record. The Cadet fact-checked the disagreement between Mr. Gottwald and Mr. O'Leary on this important point using the video and transcript made by The Cadet Foundation volunteers since VMI did not record the ExCo. This review found Mr. Gottwald was accurate that the Commandant, Mr. O'Leary, and the Superintendent represented the draft policy and procedures followed the model guidelines. First, as provided in the documents previously reported in The Cadet, slide 3 in Col. Bogart's ExCo the presentation, reviewed and approved by Mr. O'Leary and Maj. Gen. Wins, states: "The VMI Transgender Policy and Procedures is based upon the Virginia Human Rights Act, Virginia Code § 22.1-23.3, and the Virginia Department of Education 2023 Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents." [emphasis added] Page 2 of the proposed Standard Operating Procedures [SOP] for Transgender Cadets presented to the ExCo states the policy and SOP is "Based upon Virginia Code § 22.1-23.3, and the Virginia Department of Education 2023 Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents…" [emphasis added] Appendix B, References, to the proposed transgender SOP includes the model guidelines, "K. Virginia Department of Education, Model Policies on Ensuring Privacy, Dignity, and Respect for All Students and Parents in Virginia's Public Schools, published July 18, 2023." [emphasis added] During his presentation to the ExCo, Col. Adrian Bogart stated, "I'm calling your attention to, during our review, we looked at several references that are here on the screen. The two I'll call out is, again, the Virginia Human Rights Act, and the second one not listed was the Virginia Department of Education 2023 model policies on ensuring privacy, dignity, and respect for all students and parents. Now that's predominantly for K-12, but there was a good framework in there to elaborate from when we looked at our standard operating procedures." [emphasis added]. In the same presentation Col. Bogart "highlighted some of the eight areas we looked at, which is based on "the Virginia Department of Education's model that came through the governor's office." [emphass added] Col. Bogart was more emphatic later on, adding, "So I really do want to make that clear, because what we did here was we took the atopic areas that were in the model guidelines from the state and elaborated it out towards VMI." [emphasis added] Mr. Gottwald then also reminded Maj. Gen. Wins that Mr. Watjen and Maj. Gen Wins talked with the governor the previous May, around the time of graduation, and told him that VMI's policy would be based on biological sex, in accordance with the model guidelines. Neither Mr. O'Leary nor anyone else present at the ExCo disputed those statements. As discussion of the proposed transgender policy and procedures closed, Mr. Joustra restated his support for Mr. Gottwald's comments. "I concur with what Teddy's saying," said Mr. Joustra, "but I would just add one more thing. As I look at the law, I think VMI is about leadership, and I think we determine what's best for VMI, for the environment that we have outlined very well in our strategic plan. And we do what we feel is right. And, if that requires challenges in the legal system, then we do that. And that's really the only last comment I have." BOV Member Ms. Gussie Lord '01 concluded by asking Mr. O'Leary to confirm the BOV would receive a memo he will provide in advance of the January meeting. Mr. O'Leary then stated he would also provide a briefing to discuss the contents of the memo. Again, according to Mr. O'Leary "any questions that the Board may have during the briefing during closed session." These will also not be transparent to the public. BOV Member Rear Adm. (Ret.) Terence E. McKnight '78 concluded his remarks asking if Maj. Gen. Wins and the working group considered the transgender policies at Service Academies. Maj. Gen. Wins responded "…we've looked at a full range of policies. We looked at the Army's Transgender policy. We have reached out to at least the Army, not all Service Academies, but I believe we've reached out to the USMA. We've talked to a number of different organizations to include state organizations about their existing policies and or their understanding of the law as they've applied it to their policies." VMI, also looked at the Department of Defense Transgender policy and Title IX with Maj. Gen. Wins stating "there's an anticipation that there will be some adjustments to that Title IX at some point, coming from the Biden Administration." Rear Adm. McKnight recommended review of the policies for all the services and the way they're implemented. The BOV meeting did not cover, and the BOV's main website does not currently provide, the public comments submitted to the BOV on the issue. After The Cadet and The Cadet Foundation raised awareness of the pending meeting the BOV received a number of comments obtained by a third party under a FOIA request and provided to The Cadet. Alumnus Nick Nicholson '62 called, in part, on the BOV to "please exercise common sense in rendering a policy statement regarding this very controversial subject. Any option other than one based on biological orientation is simply plowing new ground and based on unfounded socially developed information, in my opinion. Furthermore, I believe you will be well advised to undertake an in depth investigation regarding this topic before coming to a decision. Quite literally, the fate of the institute is in your hands." Parent Elizabeth Steele wrote, in part, "As the mother of a cadet, I expect you all to have my son's best interest in mind. What Gen Wins has proposed as policy will not keep our sons and daughters safe at VMI…. The corps is leaving behind its values and integrity by putting forth such policies… Please take a stand for what is right and affirm biological gender identity and all that it entails." Blaine Noel, VMI Quartermaster Military Store, called on the BOV to be judicious in fully exploring all aspects of the proposed policy and their impact on VMI services and logistics. The request included, "I feel that it is my duty to address some of the concerns that our staff may have, and I want any student to feel comfortable and at home in our Military Store and/or QMD, " Noel wrote. In addition to posing a number of operational questions that should be addressed, Noel brought to the BOV's attention that "There is a plethora of questions that have ﬂoated here in the store among our group of ﬁtters. I want to make sure that the student is protected and not questioned inappropriately or made to feel uncomfortable in a place where we want them to feel welcome and get that bit of reset for however long they are in our care. But I also don't want to dismiss the concerns of my staff. We ask that our department in particular be thought out carefully so that we can welcome any student that walks through that door. We are here to serve." Mr. Carmen Villani '76, former Honor Court President, also echoed the position in the model guidelines and service policies that the actual anatomy of the individual should be the determining factor in establishing the "gender marker." "In my view, " wrote Mr. Villani in part, "the current draft policy will create discrimination and disruption in barracks. Barracks life is an essential element of the VMI Experience. Providing separate living quarters for transgender students will remove them from that experience and probably have a negative impact on the BR spirit." Mr. "Chip" Humphrey '70 wrote, in part, "Reading the discussion concerning whether or not the individual identifies as a woman or a man sounds like it is not consistent with Virginia's model policies…If the policy was to be based on "biological sex," this policy discussion misses the mark. The STATE needs to make the guidelines for this just like they did for marriage, disabilities, and pregnancy… I fear that this will be the last straw with the Alumni after the DE(O)I issue." He also opined that a cadet cannot be married, disabled, or pregnant and attend VMI transgender should be similarly included because "it does not fit the VMI model". He concluded by asking the BOV "If VMI can't discriminate on gender identity, how can it do so for marriage, disabilities, and pregnancy?" Mr. Joe Steele '97, a former Cadet Battalion Commander, Honor Court President, and Marine Corps Officer with combat service in Iraq wrote, in part, "I foresee catastrophic implications upon barracks life and future cadet recruiting if VMI presses forward with this policy… If VMI allows a male cadet to identify as a female cadet, on what rational basis could VMI preclude rats from identifying as first-classmen? I challenge the BOV to think through the logical and practical implications of allowing gender to be self-defined rather than objectively defined." Steele concluded, "I will pray for courage and conviction for the BOV to do the right thing." The voice of the entire Corps remains the one missing in the current discussion and The Cadet will continue its efforts to inform and give the Corps that voice guaranteed under freedom of speech. Cadets can express their opinions without fear of their identities being compromised to the administration by taking The Cadet survey at this secure link: https://www.surveymonkey.com/r/transvmi