The Virginia Supreme Court agreed Monday to take up a challenge to one school board’s policy which added sexual orientation, gender identity and gender expression to its policy and student handbook.
The case against Fairfax County School Board was dismissed by a lower court, and now the state supreme court has agreed to hear the case of Jake Doe, a minor, John and Jane, the parents, and Andrea Lafferty who are represented by Liberty Counsel.
“This is very good news that the Virginia Supreme Court decided to grant the appeal and will now review the case,” said Mat Staver, founder and chairman of Liberty Counsel, in a prepared statement Monday night.
“The Fairfax Country School Board’s lawless act of adding ‘gender identity, expression and sexual orientation’ to the local policy violates state law and harms children. This is a matter of statewide and national concern.”
Staver said the lower court’s dismissal was “wrong and we look forward to the upcoming hearing before the Virginia Supreme Court. The fact that the Virginia Supreme Court decided to take up this case should be a warning to other local Virginia school boards and government bodies to back away from following the path of Fairfax County.”
Virginia follows the “Dillon’s Rule,” which requires local nondiscrimination laws to not be more stringent than the state law. However, state law does not include “sexual orientation,” “gender identity,” or “gender expression.”
The circuit court dismissed the lawsuit, stating any challenge must be filed within 30 days of a school board’s action. But as argued by Liberty Counsel, Dillion’s Rule is not subject to the 30-day provision.
The Virginia Supreme Court zeroed in on that 30-day provision and similarly appeared to agree that a Dillon’s Rule challenge cannot be limited to a 30-day window.
If the rule were limited, the school board could pass illegal policies that conflict with state law during the summer break when there are no students on site to challenge the law, according to Liberty Counsel.
Fairfax County adopted its policies beginning July 1, according to the Fairfax Times.
“Under the regulations, transgender and gender non-conforming students should be referred to on a daily basis by their preferred name and gender pronouns, and they can use bathrooms, locker rooms and other facilities consistent with their gender identity, though a court order or updated birth certificate is required to make changes to a student’s permanent records,” the local press reported.
The new guidelines were not published on the school’s website, but were published online by FCPS Pride, which is composed of lesbian, gay, bisexual and transgender (LGBT) employees, parents of LGBT students, and community members.
The Fairfax County case is one of several around the country. One case in Virginia was blocked by the U.S. Supreme Court. Federal courts also blocked the Obama administration’s lesbian, gay, bisexual and transgender directive to public schools.