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Liberty Counsel asks Virginia Supreme Court case to take up their Fairfax lawsuit

Lawsuit contends school boards do not have the right to add protected classes independent of the General Assembly

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)

The right-wing legal organization challenging Fairfax County Public Schools’ (FCPS) nondiscrimination policy has asked the Virginia Supreme Court to hear their lawsuit. 

Liberty Counsel has filed a petition for appeal asking the court to hear the case, arguing that the addition of the terms “sexual orientation,” “gender identity,” and “gender expression” to the nondiscrimination policy was done unlawfully. According to Liberty, Dillon’s Rule prohibits local governments in Virginia from altering or adding additional protected classes to the state’s civil rights laws, unless the General Assembly passes legislation to take similar actions.

However, in 2014, Virginia Attorney General Mark Herring (D) issued an opinion in which he ruled that Dillon’s Rule prohibitions on altering the state’s nondiscrimination laws did not apply to local school boards. Thus, school districts were free to amend their policies to include protections for the LGBT community as they saw fit. But Liberty has held that Herring’s opinion was based on faulty legal reasoning and was politically motivated.

To stop the Fairfax County School Board from implementing its nondiscrimination policy, particularly with respect to restroom use, Liberty Counsel, on behalf of an anonymous student, his parents, and Andrea Lafferty, the president of the Traditional Values Coalition, sued the board in Fairfax County Circuit Court. But the lawsuit was thrown out after the court ruled that the plaintiff had not suffered any “injury” from the adoption of the policy. Thus, Liberty Counsel has asked the Virginia Supreme Court to reverse the circuit court’s ruling, claiming that the policy constitutes “unconstitutional violations” of students’ privacy and right to education.

“Virginia law requires uniformity throughout the state to avoid a patchwork of conflicting laws at the local level. The school board act of adding ‘gender identity, expression, and sexual orientation’ to the local policy violates state law and harms children,” Mat Staver, the founder of Liberty Counsel, said in a statement. “Allowing boys to use private facilities for girls violates the right to privacy and places girls at risk of sexual abuse.

Staver continued: “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. The officials tasked with protecting children in the public schools have now actually become the greatest threat to them with the imposition of this radical sexual agenda.”

But Liberty Counsel’s lawsuit, even should it be restored and the courts rule that Fairfax unlawfully violated Dillon’s Rule, may be all for naught. A separate case surrounding Virginia transgender teenager Gavin Grimm, who is suing the Gloucester County School Board over its nondiscrimination policy, is currently working its way through the court. If federal courts decide in favor of Grimm, transgender students will still be allowed to use the restroom or changing facilities consistent with their gender identity, thus circumventing Liberty’s attempt to stop such policies from going into place.

Additionally, the Obama administration’s lawsuit against the state of North Carolina over its HB 2 law, part of which prohibits transgender people from using public restrooms other than those designated for their biological sex, may also render Liberty’s lawsuit moot. In the meantime, guidance from the Department of Education and Department of Justice has been issued to local school boards to ensure that transgender students are treated according to their gender identity and are not singled out for discrimination. The guidance covers a number of different areas and school-related topics, not only relating to restroom use but the use of a student’s preferred name, changes to educational records, dress code, and access to student activities. 

Currently, when a student in Fairfax County Public Schools identifies as transgender, individual schools work out a specially-tailored bathroom plan, according to Connection Newspapers. That plan offers students the option of using single-stall facilities if that will make the student feel most comfortable. The Obama administration’s guidance says that single-stall facilities must be made available to all students, and cannot be restricted to transgender students alone. 

School board members Ryan McElveen, who sponsored the proposal to amend the nondiscrimination policy, and Pat Hynes, the chair of the board — though not speaking in her official capacity — told Connection Newspapers they both personally believe that Fairfax’s current policy complies with the federal guidance.

“We knew it was the right thing to do at the time,” said McElveen. “[The guidance] clarifies we were on the right path then.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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