When the members of the Fairfax County School Board added sexual orientation and gender identity to the school system’s nondiscrimination policy in November 2014 and May 2015, did they have the authority? A lawsuit filed Dec. 21, 2015 in Fairfax Circuit Court by the Liberty Counsel contends they did not.
“We believe that Virginia state law is crystal clear on this subject, that it deprives local government bodies, such as the Fairfax County School Board, of the authority to expand or contract protected classes under the state nondiscrimination law,” said Horatio Mihet, chief litigation counsel with Liberty Counsel.
Mihet is representing Andrea Lafferty, president of the pro-family advocacy group Traditional Values Coalition and opponent of the policy changes, and the plaintiff, a Fairfax County high school student and a minor, whose parents and friends are also named as plaintiffs all under the name “Doe.”
The Liberty Counsel complaint contends that the student is finding school an unsafe place to learn in part because “gender identity” isn’t clearly defined in the new policy or the student code of conduct. He has expressed fear of punishment for breaking the new nondiscrimination rules regarding transgender students in his bathroom or locker room space, because he does not fully understand what those rules are, according to the suit.
The student plaintiff, Mihet said, “has clear statutory and constitutional rights which are being infringed. In its desire to please one component of its constituency, the School Board has managed to run roughshod over the privacy rights of its students and their parents.”
In addition to the suit, Liberty Counsel has also filed a motion for a preliminary injunction that would force the School Board to reverse the policy change immediately, prior to further litigation.
After Liberty Counsel’s announcement the suit had been filed, School Board Chairman Pat Hynes released the statement that once the board was served with it, “our attorneys will review it and file the appropriate response with the court.”
“Every child in our school system needs to know they are respected and will not face discrimination,” Hynes’ statement continued, “and the same thing goes for employees when they walk through our doors.”
Springfield District School Board member Elizabeth Schultz said she sees the lawsuit as “unfortunate” but thinks that it was “foreseeable.”
“I think the current board lunged ahead with what was largely a political agenda,” Schultz said. “Now unfortunately we’re going to pay the price of a lawsuit. Of course there are better things to spend money on, but now have to be in a defensive position.”
Schultz was applauded by many before the vote on May 7, in an uncommonly crowded auditorium at Luther Jackson Middle School, when she encouraged the board to postpone its vote, engage more with the community on the issue, and ultimately voted against the policy change.
Despite a boisterous crowd that night that was largely opposed to the change, School Board member Megan McLaughlin (Braddock District) said, “This policy update was not as controversial as alluded to and in fact was the right thing to do.”
McLaughlin pointed to the results of November’s election, saying, “I think the larger community demonstrated that in their decision to return virtually all the incumbents back to this board.”
Robert Rigby, teacher at West Potomac High School and president of the Lesbian Gay Bisexual and Transgender-friendly employees’ group FCPS Pride, is promoting mediation on the issue, outside of litigation. Rigby released a statement following the lawsuit that he and his organization are working to set up meetings between opponents of the policy change and members of the LGBT community in Fairfax County Public Schools.
“The idea is to put real people out there,” Rigby said, “invite some transgender kids and parents to meet. We’re hoping to change hearts and minds — that’s the ultimate hope. We want to start conversations.”
Rigby believes the move by Lafferty and the Liberty Counsel is a “hail Mary, a last-ditch effort” to affect the board’s position, after previous attempts to “drive the ball down the field” at board meetings were unsuccessful.
Regarding the student plaintiff’s experience, Rigby said he shouldn’t feel afraid. “Transgender teens are not scary, and very aware of the fact that people may feel uncomfortable around them,” he said. “They’re not out to confront anybody, to scare.”
Rigby is continuing to work on facilitating meetings with opponents of the policy, including former School Board members Michelle Brickner and Steve Hunt. “I think we have the right on our side,” he said.
Mihet with Liberty Counsel said he believes the preliminary injunction will be heard in the next 60 days. Andrea Lafferty was unavailable for an interview.