Metro Weekly

Lawsuit: Fairfax LGBT nondiscrimination policy is unlawful

Plaintiffs claim school board exceeded its authority by violating Dillon's Rule

Supporters and opponents of adding gender identity to the Fairfax County Public Schools nondiscrimination policy hold competing signs outside of the school board meeting at Luther Jackson Middle School. (Photo credit: John Riley)
Supporters and opponents of adding gender identity to the Fairfax County Public Schools nondiscrimination policy hold competing signs outside of a school board meeting at Luther Jackson Middle School. That policy is now the subject of a lawsuit. (Photo credit: John Riley)

Several Fairfax County residents have filed a lawsuit against the Fairfax County School Board, alleging that the board’s decision to amend its nondiscrimination policy to include sexual orientation, gender identity and gender expression is unlawful and violates Virginia law.

The lawsuit has been lodged by Andrea Lafferty, a Fairfax County resident and president of the Traditional Values Coalition, and by an anonymous Fairfax public school student — known as “Jack Doe” — and his parents. The plaintiffs in the lawsuit are asking for an injunction to stop the board from implementing the new LGBT-inclusive nondiscrimination policy.

The plaintiffs argue that the addition of the protections violates Dillon’s Rule, which limits the power of local governments to only those powers expressly granted by the state constitution or by statutes passed by the legislature. Because the Virginia General Assembly has not granted special or protected status to LGBT people, the plaintiffs say the board has exceeded its legal authority and has introduced additional protected classes without defining what “sexual orientation,” “gender identity” and “gender expression” mean.

“Jack Doe is particularly distressed about the Board’s decision to add ‘gender identity’ to the non-discrimination policy and to the student code of conduct because ‘gender identity’ is not defined in either the policy or the code, so Jack Doe has no idea what words or conduct might be interpreted as discriminating on the basis of ‘gender identity,’ and therefore does not know what speech or conduct might subject him to discipline, including suspension,” the lawsuit claims.

“Jack Doe is nervous about having to think about every statement or action and its potential sexual connotations to third parties before interacting with students and teachers, and the prospect of having to interact in such an uncertain environment creates significant distress to the point that it adversely affects his ability to participate in and benefit from the educational program,” the complaint continues. “…Because of Defendant’s actions, Jack Doe cannot regard school as a safe place where he can learn what he needs to be a productive and well-educated adult without fear of harassment, being charged with harassment, and having his speech and conduct chilled by the fear of reprisals or of discipline for unknowingly violating the ambiguous code of conduct.”

The Fairfax County School Board’s actions to add the protected classes to its nondiscrimination policy were based on an opinion by Attorney General Mark Herring (D). In that opinion, Herring opined that school boards are granted a degree of leverage to “adopt bylaws and regulations” for their own governing and management purposes. The plaintiffs claim that Herring, in that opinion, ignored a phrase describing the bylaws and regulations that school boards may choose pass as “not inconsistent with state statutes and regulations of the Board of Education,” which, at first glance, would appear to give deference to Dillon’s Rule.

The plaintiffs also say that Herring engaged in faulty logic by using the decision by the 4th U.S. Circuit Court of Appeals that struck down Virginia’s ban on same-sex marriage to argue that school boards could not discriminate against same-sex spouses, and could therefore prohibit discrimination based sexual orientation and gender identity. They point to a conflicting opinion offered by the former Attorney General Jerry Kilgore (R) that found that local school boards could not have that authority because the General Assembly had not expressly granted that power to them.

In practice, if the plaintiffs’ arguments are ruled to have merit, it means that school boards in Fairfax and other jurisdictions will be prevented from adopting pro-LGBT nondiscrimination policies. Currently, the leadership of the Republican-dominated Virginia General Assembly refuses to grant protected status to people based on their sexual orientation or gender identity, or even acknowledge the existence of varying sexual orientations or gender identities outside of heterosexuality.

Robert Rigby, Jr., the president of the LGBT and allied organization FCPS Pride, issued a statement lamenting that opponents had resorted to a lawsuit that would cost both proponents and opponents of the policy “a great deal of money” and increase the animosity between the two sides. Rigby says his group has already met with some members of the school board and community members to talk about the importance of the protections, and hopes to meet with others, including Lafferty and other conservatives, in the coming months. 

“The express idea is that greater familiarity leads to greater understanding,” Rigby said. “We invite all opponents to meet with us, as conveniently as we are able to arrange it within our schedules over the next few months. …Although these face-to-face meetings will take time and patience, we think that they are a better approach to the controversy in Fairfax that legal measures such as FOIA requests and lawsuits.”

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