Virginia’s highest court heard arguments on Thursday in a case involving a Fairfax County high schooler who opposes the school board’s transgender bathroom policy as an invasion of his privacy.
Identified in court documents as John Doe, the 16-year-old said the Fairfax County School Board not only disregarded the privacy rights of non-transgender students but also violated state law by implementing a policy that allows students to use the restrooms and locker rooms of the gender they identify with.
Virginia’s “Dillon Rule” bars municipalities from enacting anti-discrimination measures that are more encompassing than the state’s, said Daniel Schmidt, an attorney for Liberty Counsel who represents the boy, his parents and a Fairfax County resident in the case.
“The state law does not permit local municipal governments, including the school board of Fairfax County, to enact laws that are more extensive than state laws on discrimination,” Mr. Schmidt said. “The Virginia Human Rights Act doesn’t include sexual orientation or gender identity, and by including that in the school nondiscrimination policy, they have exceeded the bounds of what they’re authorized to do.”
“From a straight merits standpoint, the case should be easy,” the plaintiffs” attorney said.
The Fairfax County School Board could not be reached for comment. It claims to have broad authority to enact policy and contends the plaintiffs do not have standing to sue.
The lower court sided with the school board, saying there had been no injury to John Doe, who consequently had no standing to bring the lawsuit.
Mr. Schmidt said it’s difficult to predict how the Virginia Supreme Court will rule, but said he is encouraged by its willingness to take the case.
“It’s tough to read the tea leaves, but it’s hard to imagine the Supreme Court taking the case and then say the lower court was right and affirm it,” he said. “But that’s a really hard call to make.”
Andrea Lafferty is a plaintiff in the case and president of Women for a Great America. She said there’s a way to accommodate students who identify as the opposite sex without infringing upon the privacy of other students, but the transgender rights movement have been unwilling to accept any compromise.
“There have been attempts at compromise, but the school district really has not gone along with that,” Mrs. Lafferty said. “And what you’ll find from the politicized, transgender community is they don’t even want to use the unisex bathroom or family bathrooms, they want men who are confused and think they are women to be able to use the women’s bathroom.”
The Virginia court case comes amid national attention on transgender issues.
The U.S. Supreme Court is scheduled to hear a case this month brought by a transgender Virginia student, Gavin Grimm, who says the Gloucester County School Board violated Title IX by barring him from the boys’ restroom.
Meanwhile, Brandon Adams, a transgender high school student from Farmingham, Massachusetts, said he believes creating separate changing facilities for transgender students is unconstitutional and would only serve to alienate them from others.
“I hope that the Supreme Court will realize the value in this case and the fact that separating transgender people not only makes them feel alienated, but also makes them have a higher target on their backs for discrimination and bullying and things of that nature,” Brandon, 15, said Thursday on a press call sponsored by the American Civil Liberties Union.
President Trump last week repealed an Obama-administration guidance requiring schools to allow students to use whichever lavatory facilities they choose under the Title IX ban on sex discrimination in education.
The revocation raised fears that the Supreme Court will send the Grimm case back to the lower court, which relied heavily on deferring to the administration in siding with the transgender student.
Mr. Schmidt said the U.S. Supreme Court case could affect the Virginia case if the nation’s highest court imposes a new interpretation of Title IX.
“If they say Title IX requires schools to do this, then all public school districts are going to be required to do that,” he said. “But if they say no, which I think they will and should, then it won’t have any impact on this case.”