- The Washington Times - Tuesday, September 13, 2016

The Virginia Supreme Court has agreed to take a case challenging the Fairfax County School Board’s authority to extend nondiscrimination protections to LGBT students.

Mat Staver, founder and chairman of Liberty Counsel, which brought the lawsuit against the school board, said the high court’s decision to hear the case is “very good news” after a lower court dismissed it on procedural grounds.

“The Fairfax County School Board’s lawless act of adding ‘gender identity, expression and sexual orientation’ to the local policy violates state law and harms children,” Mr. Staver said in a statement.

At issue is whether the board adhered to “Dillon’s Rule,” which bars local nondiscrimination laws in Virginia from being more stringent than the statewide standard. Virginia state law does not prohibit discrimination on the basis of sexual orientation, gender identity or gender expression.

The school board revised its policy in late 2014 to include “sexual orientation” as a protected class, according to the complaint filed against the board. Less than one year later, it further amended the policy to include “gender identity” and “gender expression” as protected classes.

One of the plaintiffs is a Fairfax County high school student, identified as “Jack Doe” in the complaint, who is distressed about the policy’s potential to allow students to use the restrooms, locker rooms and showers of the opposite sex.

“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 though[t] patterns and understanding about male and female relationships which are part of his cultural values,” the complaint reads.

Fairfax spokesman John Torre said the district will “vigorously defend the School Board’s decisions before the Virginia Supreme Court.”

“The Fairfax County School Board was well within its legal authority to adopt a policy that promotes dignity, respect and equality for every FCPS student and employee,” Mr. Torre said in a statement.

Citing a Department of Education Office for Civil Rights letter on the meaning of Title IX, the school board said at the time it risked losing federal funding by not expanding its nondiscrimination policy. And Virginia Attorney General Mark Herring weighed in on the matter in a March 2015 letter, arguing that local school districts have the authority to expand their policies to cover sexuality and gender identity.

Several other school districts in Virginia, including Arlington and Albemarle counties, have implemented similar policies.

Mr. Staver said the lawsuit is of “statewide and national importance” and should persuade “other local Virginia school boards and government bodies to back away from following the path of Fairfax County.”

The lawsuit was dismissed in February by the Circuit Court of Fairfax County, which said challenges to school board policy must be submitted within 30 days.

But Mr. Staver, who argued before a three-judge panel on Sept. 1, said challenges invoking Dillon’s Rule are not subject to the 30-day window.

“The lower court’s dismissal was wrong and we look forward to the upcoming hearing before the Virginia Supreme Court,” he said.

The high court’s decision to hear the case comes after a federal judge in Texas issued a nationwide injunction on the Obama administration edict compelling public schools to permit restroom and locker room access on the basis of gender identity.

In that case, Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas said the administration failed to go through proper rule-making procedures, including notice and comment, before issuing the order.

That was just the latest example of the Obama administration’s attempt to integrate intimate sex-specific facilities on the basis of gender identity.

Several agencies have repeatedly interpreted Title IX as barring discrimination in education on the basis of “gender identity,” even though the federal statute only mentions “sex.”

And the Department of Justice and North Carolina filed dueling lawsuits in May over a state law regulating access to intimate public amenities on the basis of biological sex.

The highest court to weigh in on the issue is the 4th Circuit Court of Appeals, which sided with the Obama administration’s interpretation of Title IX.

But the Supreme Court stayed that order, prohibiting a Virginia high school student from using the boys’ restroom until the Court considers whether to hear the case.

• Bradford Richardson can be reached at brichardson@washingtontimes.com.

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