Metro Weekly

Virginia Supreme Court to take up challenge to Fairfax County nondiscrimination policy

Lawsuit argues that school boards do not have power to pass LGBT-inclusive policies under Dillon's Rule

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.

In a move that could signal its desire to overrule a lower court decision, the Virginia Supreme Court has decided to take up a challenge to Fairfax County’s nondiscrimination policy, which was amended last year to add sexual orientation, gender identity and gender expression.

The lawsuit, filed by an anonymous student, his parents, and Andrea Lafferty, the head of the Traditional Values Coalition, had sought a court order that would block Fairfax County Public Schools from enforcing the policy. The student claims to be “distressed” by the decision to add gender identity to the nondiscrimination policy, as it might mean he’d have to watch his words around transgender students, and worried about having to use the bathroom with a transgender male, whom he and his parents would consider a “girl.” But the Fairfax County Circuit Court ruled that the student did not have standing to sue, because he had experienced no injury, such as being threatened with expulsion or suspension for his objection to the policy.

Right-wing legal organization Liberty Counsel, which is representing the plaintiffs, celebrated the Virginia Supreme Court’s decision to take up the case as a potentially good omen.

“The Fairfax Country School Board’s lawless act of adding ‘gender identity, expression and sexual orientation’ to the local policy violates state law and harms children,” Mat Staver, the founder and chairman of Liberty Counsel, said in a statement. “This is a matter of statewide and national concern.”

Staver also attempted to intimidate other jurisdictions that would attempt to pass similar policies, such as Prince William County, which is expected to vote on passing similar nondiscrimination protections on Sept. 21.

“The fact that the Virginia Supreme Court decided to take up this case should be a warning to other local Virginia school boards and government bodies to back away from following the path of Fairfax County,” Staver said.

The crux of Liberty Counsel’s argument relies on how the Virginia Supreme Court interprets “Dillon’s Rule,” which prohibits localities from exercising powers that have not been explicitly granted to them by the General Assembly. In the case of nondiscrimination policies, because Virginia does not have any laws that recognize sexual orientation or gender identity, cities or counties within the commonwealth are prohibited from extending protections to LGBT people. But an opinion by Attorney General Mark Herring notes that a provision of the state constitution grants school boards the authority to govern themselves, which is why Herring said that school boards could pass such nondiscrimination policies if they wished, while local boards of supervisors could not.

Robert Rigby, a spokesman for FCPS Pride, an LGBT-supportive group of parents, teachers and school district employees, issued a statement in response to the decision to take up the case.

“It’s not surprising since it takes only one justice to grant an appeal,” Rigby said. “The disappointment is that this will prolong the process, and have a chilling effect on school systems, and school staff, in making public schools safer and more welcoming for all students and families. We trust that FCPS will maintain its resolve to be fair to all students, staff and families, including LGBT people. These legal shenanigans on the part of the Liberty Counsel and Andrea Lafferty just prolong the process of cementing equality.”

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