Metro Weekly

Lawsuit challenging Fairfax nondiscrimination policy dismissed

Circuit Court rules the anonymous plaintiff has no standing because he is not injured by policy

A parent holds up a sign opposing Policy 1450, which adds gender identity to Fairfax County Public Schools' nondiscrimination policy.
A parent holds up a sign opposing Policy 1450, which adds gender identity to Fairfax County Public Schools’ nondiscrimination policy.

A Virginia judge has dismissed a lawsuit challenging the addition of protections covering LGBT students, teachers and staff to Fairfax County Public Schools’ (FCPS) nondiscrimination policy. But lawyers representing the plaintiffs in the lawsuit vowed to appeal the judge’s decision on Monday.

The Fairfax County Circuit Court on Friday dismissed the lawsuit based on lack of standing. The lawsuit was lodged by Fairfax County resident Andrea Lafferty, the president of the Traditional Values Coalition, on behalf of an anonymous FCPS student known as “Jake Doe” and his parents. They had asked the court for an injunction to stop the Fairfax County School Board from implementing the policy with the new protections for sexual orientation and gender identity, which were added in November 2014 and May 2015, respectively.

In their lawsuit, the plaintiffs had claimed that Jake Doe was “distressed” by the school board’s decision to add gender identity to the nondiscrimination policy. He claimed to be nervous about unintentionally offending or having to watch his words and actions around transgender students, and was particularly frightened of having to use the bathroom with a transgender male, whom he and his parents would consider a girl due to their biological sex at birth.

But the circuit court ruled that Jake Doe did not have standing to sue because there was no injury, such as the threat of expulsion or suspension. In response, Liberty Counsel, which is representing Lafferty and the Doe family, issued a statement blasting the court for having “wrongfully dismissed” the lawsuit.

“Minors in Fairfax County, Virginia, will now be subjected to invasions of their privacy, inside the very school district tasked with protecting them,” Liberty Counsel said in its statement.

The organization also argued that its case should be allowed to move forward on its merits — specifically, that Dillon’s Rule prevents localities from adopting policies providing nondiscrimination protections to groups not recognized as protected classes by the Virginia General Assembly. An opinion offered by Virginia Attorney General Mark Herring (D) ruled that while local governments could not adopt such policies, local school boards had leeway to adopt them as they saw fit — a finding that social conservatives dispute.

“Virginia law explicitly prohibits local governing bodies from altering the state’s nondiscrimination policy,” Liberty Counsel added. “Civil rights are coded in Virginia law. In changing the nondiscrimination laws, the school board acted recklessly and unlawfully. The strength of America’s foundation is that no school may disregard our laws. Just as a board may not remove ‘race’ or ‘religion’ from its nondiscrimination clause, it cannot add groups that are not recognized by the Virginia Legislature.”

But School Board Chairman Pat Hynes (Hunter Mill) issued a statement on behalf of the officially nonpartisan but Democratic-leaning school board, saying the board was “pleased” with the decision to dismiss the lawsuit.

“The School Board remains committed to ensuring that all of our students and employees are treated fairly and with dignity and respect,” Hynes said.

“We applaud the Circuit Court’s decision to dismiss the lawsuit brought against the Fairfax County School Board,” James Parrish, the executive director of Equality Virginia, said in a statement. “While the plaintiffs fail to name a student in their lawsuit, we have seen multiple parents, students, and educators come forward in support of these policy updates. The School Board voted to do the right thing last year by including sexual orientation and gender identity as protected classes in their nondiscrimination policies. Their decision should continue to be supported as it was in this case, as they continue to lead their peers towards full inclusiveness and equality for gay and transgender students and teachers.”

A similar case dealing with a transgender student’s challenge to an existing restroom use policy in Gloucester County, Va., is currently being litigated in the U.S. 4th Circuit Court of Appeals. A federal judge previously ruled against the student’s request for an injunction to stop the local school board from enforcing its policy, prompting the teen’s lawyers to appeal the decision. They have argued that their client should be protected under both the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and under Title IX’s prohibitions on discrimination based on sex.

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