Metro Weekly

Liberty Counsel appeals dismissal of Fairfax County lawsuit

Appeal alleges that lawsuit over FCPS nondiscrimination policy was wrongfully dismissed

A sign from the recent debates over Fairfax County Public Schools adopting pro-LGBT policies that include gender identity. (Credit: john Riley)
A sign from the recent debates over Fairfax County Public Schools adopting pro-LGBT policies that include gender identity. (Credit: john Riley)

Lawyers representing the Traditional Values Coalition (TVC) and an anonymous Fairfax County family have appealed the dismissal of a lawsuit against the Fairfax County School Board, arguing that their claim was wrongfully dismissed.

TVC’s president, Andrea Lafferty, initially filed the lawsuit on behalf of Jack Doe, an anonymous Fairfax County student, and his family, challenging the school board’s addition of sexual orientation and gender identity to its nondiscrimination policy, in November 2014 and May 2015, respectively. They also asked for an injunction to stop the revised policy from being implemented. 

But the Fairfax County Circuit Court dismissed the lawsuit last month, finding that because Jack Doe did not face any injury, such as the threat of expulsion or suspension, he lacked standing to file the lawsuit.

Doe’s lawyers from Liberty Counsel, the conservative law firm known best for representing Kentucky Clerk Kim Davis in her fight against same-sex marriage, argued that their client was “distressed” by the addition of gender identity to the nondiscrimination policy. Because Doe is uneducated about LGBT issues and gender identity, he claims to be nervous about having to watch his words or actions. He also claims to be frightened at the prospect of having to use the same public restroom as a transgender male, whom he and his parents would consider a girl due to that person’s biological sex at birth.

In a statement last month vowing to appeal, Liberty Counsel issued an ominous warning, alleging: “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 and their clients feel that if the appeal is granted and the case is allowed to move forward, they have a better chance of overturning the policy based on the fact that it violates Dillon’s Rule. Under Dillon’s Rule, local municipalities are prohibited from exercising powers that are not explicitly granted to them by the General Assembly, including the adoption of nondiscrimination policies that grant protected status to groups not covered by Virginia’s existing Human Rights Law, including LGBT people. However, an opinion offered last year by Virginia Attorney General Mark Herring (D) found that while local governments could not adopt such policies, local school boards, which do not constitute municipalities, could adopt and tailor their own policies to include such groups.

In response, social conservatives attempted to oust the school board members who voted for the policy in the 2015 elections, which was largely unsuccessful. They also pushed for legislation that would curb any attempts at expanding equality. One such bill, introduced by Del. Bob Marshall (R-Manassas) earlier this year would have explicitly prevented any school board or municipality from adopting any policy not first approved by the General Assembly. That bill was later tabled in a House subcommittee.

FCPS Pride, an independent employees’ group of LGBT-supportive teachers, employees, parents and residents, issued a statement responding to the appeal.

“Liberty Counsel and their complainants, Andrea Lafferty and an anonymous family, also have asked the courts to disallow inclusion of gender identity in the student anti-harassment policy, on the grounds that the anonymous student complainant (Jack Doe) would not be able to determine if he were harassing transgender students,” the statement reads. “They seem not to be concerned about the inclusion of sexual orientation in the anti-harassment language, which was approved by the school board in 2001.

“With these tactics, Liberty and their allies seek to delay FCPS’ progress in developing policies, regulations, resources for families, and trainings for staff and students to implement fair and successful treatment of lesbian, gay, bisexual and transgender students, their families, staff and applicants,” FCPS Pride’s statement continues. “The members of FCPS Pride have seen a sea-change over the past two decades in the approach that Fairfax County Public Schools takes towards the concerns of LGBT stakeholders, and we have faith the system will continue down the right path, including successfully opposing the repeated attempts at delay and obstruction. … We reiterate out invitation to those opposed to the policies, including Andrea Lafferty, to meet amicably with members of the LGBT community in FCPS, and our families and friends, to foster greater understanding, and thus perhaps to approach these issues with less rancor.”

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