Transgender Protections Spur Suit in Virginia

     FAIRFAX, Va. (CN) – Worried that he will get suspended for confronting transgender students in the boys’ bathroom, a Virginia teenager has taken his school board to court for barring sexual-orientation and gender-identity discrimination.
     Voted in this past May and November by the Fairfax County School Board, the changes to the nondiscrimination policy and student handbook allow Fairfax County Public Schools to suspend students for engaging in discrimination based on gender identity, gender expression and sexual orientation.
     Several taxpayers filed suit over the policy change last week in Fairfax County Circuit Court, contending that it will cause student confusion, raise privacy and safety issues, and affect both student-to-student and student-teacher relations.
     “Inserting undefined terms into the student handbook and thereby subjecting students to discipline without proper notice of the conduct for which they can be suspended exceeds Defendant’s authority under Virginia law,” the Dec. 21 complaint states.
     Leading the charge against the policy change is Andrea Lafferty, president of the Traditional Values Coalition, a Bible-based, traditional-values lobbying group in Washington that has led similar efforts in the past.
     The group’s website says Lafferty has lobbied Congress to kill the Employment Nondiscrimination Act, which would prevent employers from discrimination based on’sexual orientation and gender identity in hiring and employment.
     Such legislation “would have forced schools to put transgenders in the classroom,” the group’s website says.
     Lafferty and the family of an anonymous high school student in the district are represented in the case by Christian nonprofit Liberty Counsel, a pro-life and pro-family litigation and policy organization.
     “Fundamentally they are opposed to local governments contravening state law,” Liberty Counsel’s Horatio Mihet said in an interview. “I think the merits of the policies at issue here are merits that should be discussed and addressed at the state level by the state legislature, which has the constitutional authority to address this subject matter.”
     Mihet said the policy change “was done haphazardly and lacked clarity,” creating an uncertain learning environment for students.
     “Jack Doe has no idea what words or conduct might be interpreted as discriminating on the basis of ‘gender identity,’ and therefore does not know what speech or conduct might subject him to discipline, including suspension,” the complaint says.
     Of particular to concern to taxpayers is the sharing of restrooms and locker rooms.
     Mihet said that issue is popping up in different places, and that the underlying question is whether schools must require “cross-bathroom use and cross-dressing-room use” to avoid discrimination.
     The complaint echoes these fears.
     “Jack Doe has no way of knowing whether he can, for example, question someone who appears to be a girl using the boys’ restroom or locker room, refer to someone by a certain pronoun or even compliment someone on his/her attire without being subject to discipline for ‘discrimination,'” the complaint says.
     Mihet said there is nothing in state law or Title IX, the federal law that bars sexual discrimination in education, that would prohibit schools from restricting bathroom use or locker room use. That argument is “devoid of legal merit,” he added.
     Distress over the policy change is allegedly causing trouble for Jack Doe at school.
     “Jack Doe is terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of his privacy, invasion of fellow students’ privacy and a violation of the thought patterns and understanding about male and female relationships which are part of his cultural values,” the complaint says.
     Mihet said allowing “a biological male to use a locker room where vulnerable females have an expectation of privacy would impede upon their interests as well.”
     More than 200 parents of students in Fairfax County public schools signed a petition opposing the changes to the nondiscrimination policy, according to the complaint.
     Citing Dillon’s Rule, a legal principle that the Virginia Supreme Court adopted in 1896, the complaint alleges that the Fairfax County School Board lacked authority to expand protected classes beyond what the General Assembly allows.
     Such changes can only be made by the assembly itself, the complaint says.
     Since “the General Assembly has not included either sexual orientation or ‘gender identity’ as protected classes under the laws of the commonwealth,” the complaint says that the school board “wholly lacks authority to add those classes to its non-discrimination policy and concomitantly, to add those categories to its student handbook as potential grounds for suspension.”
     The complaint notes that Virginia Attorney General Mark Herring issued an opinion in March declaring that the Virginia Constitution and the General Assembly bestowed a “broad grant of authority” that would let school boards include sexual orientation and gender identity in their nondiscrimination policies.
     Herring also relied on a 2014 ruling by the Fourth Circuit against Virginia’s ban on same-sex marriage.
     A Fairfax County School Board member asked the board to consider adding gender identity to the nondiscrimination policy one day later, according to the complaint.
     Contending that Herring relied on an incomplete interpretation of the law, Lafferty and the Fairfax family assert that the school board’s authority is restricted.
     “Absent enabling legislation from the General Assembly or the Constitution, local governing bodies, including Defendant, cannot enact ordinances or policies that are more stringent i.e., protect more classes of people, than do state statutes,” the complaint says.
     Disciplining students for discrimination based on sexual orientation and gender identity “is not necessarily implied” from state laws prohibiting unlawful discrimination because of “race, color, religion,” and other classifications, “nor can it be implied from Title IX’s sex-based discrimination,” the complaint says.
     “There must be avenues that consider all of these competing and conflicting interests and not just adopt policies for the sake of adopting them, or for the sake of pleasing one constituency to the detriment and expense of another,” Mihet said.
     When reached for comment on the lawsuit, Fairfax County Public Schools spokesman John Torre supplied a statement from school board chair Pat Hynes.
     “We have not been served with the lawsuit yet, but once we are, our attorneys will review it and file the appropriate response with the court,” Hynes said. “The School Board and FCPS administration will continue to ensure that all of our students and employees are treated with dignity, respect and equality.”
     

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