An appeals court delivered a victory Thursday to Fairfax and Arlington counties’ school systems, ruling that they can turn to the regular federal courts to defend their transgender student policies against the Department of Education.
The 4th U.S. Circuit Court of Appeals erased a lower judge’s ruling that said the counties’ complaints about federal treatment were largely a matter of contracts and belonged in the claims court.
Judge Allison Jones Rushing said the dispute is less about the actual money the Education Department is blocking and more about the reason — the department’s finding that the counties’ policies favoring transgender students’ rights violate federal law.
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“Because the school districts have asserted some claims that are not at their essence contractual, the district court erred in dismissing these complaints in full for lack of jurisdiction,” Judge Rushing, a Trump appointee, wrote in the 2-1 decision.
She was joined by Judge Albert Diaz, an Obama appointee, and sent the matter back to the lower court judge for more consideration.
That’s likely good news for the counties because the 4th Circuit has previously ruled that transgender-friendly bathroom and locker room policies do comply with federal law.
That precedent, which should be binding as the case develops, runs counter to the Trump administration’s interpretation of the law.
At issue are the counties’ policies allowing students to choose facilities that conform to their gender identity.
That allows biological boys who identify as girls to use girls’ restrooms and locker rooms and to be housed with girls during overnight school trips.
The Education Department’s Office for Civil Rights, responding to complaints, investigated and concluded last year that the policies violate Title IX, the section of civil rights law that governs sex discrimination in education.
The department prodded the counties to change their policies and said that until they do, any federal funds they are entitled to must be paid through reimbursement.
The school systems resisted changes and sued the government.
The fight so far has been largely symbolic, as all sides agree that no funding has actually been denied.
Fairfax County said most of its federal funding is siphoned through the state first, and Arlington hasn’t identified any money it gets directly from the federal government.
Still, the battle has drawn outsized attention, with Republican-led states filing briefs defending the federal position and civil rights groups weighing in on behalf of the counties.
Judge Julius Richardson, a Trump appointee, dissented from Thursday’s ruling.
He said the dispute was clearly over contracts and should not be heard in the federal district court. He said his colleagues got it backwards in highlighting the reasons for the refusal rather than the actual contract on which it’s being fought.
“The majority confuses the reason with the right,” Judge Richardson wrote.
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