Justice Department sues Virginia school board over transgender restroom policy

ALEXANDRIA, Va. (CN) — The Justice Department on Monday asked to intervene on behalf of two Virginia students who are challenging their school board’s progressive transgender restroom policy.

“Students do not shed their First Amendment rights at the schoolhouse gate,” Assistant Attorney General Harmeet K. Dhillon of the Justice Department’s Civil Rights Division said in a press release. “Loudoun County’s decision to advance and promote gender ideology tramples on the rights of religious students who cannot embrace ideas that deny biological reality.”

The complaint came in September from two unidentified male students of Stone Bridge High School in Loudoun County, a wealthy, heavily liberal suburb of Washington, D.C. The students sued after the school suspended them for 10 days for purported harassment of a transgender male student who used the boys’ locker room. The students and the federal government argue that the disciplinary decision punished the students for constitutionally protected activity.

“The First Amendment prohibits the government from requiring an individual to adhere to state-favored orthodoxies,” the department wrote in its motion to intervene. “From using preferred pronouns to sharing intimate spaces with students of the opposite sex, the school board’s policy unconstitutionally directs plaintiffs to go against their sincere religious beliefs and practice, which require using sex-aligned pronouns and using sex-segregated intimate spaces.”

The students — represented by Dunlap, Bennett & Ludwig, America First Legal Foundation and the Founding Freedom Law Center — claim the school punished them for speaking out against school board policy 8040, which permits students to use restrooms and locker rooms that correspond to their consistently asserted gender identity. The students brought claims under the Free Speech, Equal Protection, Due Process and Free Exercise of Religion Clauses of the U.S. and Virginia Constitutions, as well as under Title IX of the Education Amendments of 1972 and Virginia’s Religious Freedom Restoration Act.

The school board counters that the suspension came from their violation of another policy, which prohibits sex-based discrimination and harassment.

“Plaintiffs did no such thing — nor do they allege any facts suggesting they did so,” the school board wrote of students’ purported protest to policy 8040 in its motion to dismiss the complaint. “Instead, what plaintiffs did was sexually harass a student who was born female, but identifies as male, and subject this student to a hostile environment in violation of School Board Policy 8035: Title IX, Sex-Based Discrimination, Sexual Harassment.”

According to the school board, the transgender male student entered the boys’ locker room on March 21 and recorded two minutes of audio of male classmates voicing their discomfort in his presence. The school board initiated an investigation into the two students, along with a purported Muslim sophomore, whom the students claim the school board dismissed from the investigation.

The school board maintains that the students are mischaracterizing the reason for their suspensions.

“Plaintiffs never sought to discuss the issue of gender identity - whether to challenge school board policy 8040 or to raise their religious beliefs,” the school board wrote. “Instead, as the Title IX investigation revealed, plaintiffs targeted the complainant and harassed him based on his gender and sex. They did so openly, loudly, and repeatedly, in an attempt to intimidate and humiliate complainant, when no one who had any control over school board policy 8040 was even present.”

The court granted the students’ motion for a preliminary injunction on Oct. 10, barring enforcement of the disciplinary measures, which, in addition to the suspension, included prohibiting contact with the transgender student and requiring completion of a student support plan.

The school board filed a motion to dismiss the complaint, claiming it fails to state a claim. The school board argues that the students’ behavior was disruptive and thus not protected speech. The board further argues its policy doesn’t discriminate based on religion because it does not require Christian students to be in a state of undress in the presence of transgender classmates.

The Justice Department’s motion to intervene comes after President Donald Trump signed multiple executive orders in February declaring that it is official policy that all public schools receiving federal funding may not permit students to access locker room facilities designated for use by the opposite sex.

The suspension caused outrage among religious conservatives, prompting Virginia’s Republican Attorney General Jason Miyares to file a brief in support of the students. The suspensions came as the Justice Department announced that the Loudoun County School Board and four other Northern Virginia school boards’ gender affirming policies violate Title XI, which prohibits sex-based discrimination. Loudoun’s school board voted to reject a proposed resolution agreement that would require them to rescind the policy, prompting the government to threaten to cut federal funding.

U.S. District Judge Leonie M. Brinkema, a Bill Clinton appointee, will hear arguments on whether to dismiss the complaint on Dec. 19. Attorneys representing the school board did not respond to a request for comment.