Fairfax’s Transgender Policy Must Be Challenged

The Fairfax County Public School system (FCPS) says it won’t comply with the Virginia Department of Education’s new transgender policy because the current FCPS policy is “consistent with federal and state anti-discrimination laws as required by the new model policies.”  See Letter from Superintendent Michelle Reid to the Community, Aug. 15, 2023. HERE.

This is a bizarre, over-the-top, untrue assertion.  The FCPS policy is not “consistent with” the Department of Education’s model policy; it is fundamentally inconsistent with it in almost every particular.  As such, it violates express requirements of Virginia law.

Section 22.1-23.3 of the Virginia Code was enacted in 2020 and is entitled “Treatment of Transgender Students; Policies.”  It provides that the Virginia Board of Education will develop model policies concerning the treatment of transgender students in public elementary and secondary schools.  It further provides that every local school board must “adopt policies that are consistent with but may be more comprehensive than the model policies.”

Another Virginia statute, entitled “Rights of Parents,” provides that “a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”  Va. Code sec. 1-240.1.

The recently issued model policies were promulgated pursuant to these statutes.  Thus, the Fairfax County School Board is required to adopt policies consistent with them.  So, how can FCPS say that its existing policy is “consistent with the new model policies” when:

• The model policy requires parents to be informed about, and to have a controlling voice in, treating children who are experiencing gender dysphoria, whereas the FCPS policy provides that these issues may be kept secret from parents and that FCPS will independently support gender transitions of students.
• The model policy requires schools to use the given name of each student (and the associated pronouns) unless the child’s parents agree otherwise, whereas the FCPS policy permits students to change their name and pronouns at will without parental consent, and requires all school employees and students to comply with these name/pronoun changes under the threat of serious punishment.
• The model policy requires participation in athletic activities separated by sex to be on the basis of biological sex, rather than gender identity, unless otherwise required by law, whereas the FCPS policy permits a transgender student to choose whether to participate as male or female.
• The model policy requires locker rooms and bathrooms to be segregated by biological sex, unless otherwise required by law, whereas the FCPS policy permits a transgender student to use whatever facilities he or she desires.
• The model policy requires assignments for overnight travel accommodations to be made on the basis of biological sex, whereas the FCPS policy permits a transgender student to insist on sharing a room with a student whose biological sex differs from his or her own.

Additionally, how can FCPS argue that its policy complies with section 1-240.1 of the Virginia Code, which recognizes that parents have a “fundamental right” to make decisions concerning the upbringing, education and care of their children?  What could be more fundamental to a child’s upbringing, education and care than dealing with his or her mental health issues regarding gender identity?  And yet, FCPS policy permits the school system to cut parents off from dealing with this issue.

Given these stark contrasts between the model policy and the current FCPS policy, it is disingenuous in the extreme for FCPS to claim in a letter to the entire community that its policy is consistent with Virginia law.

The Department of Education’s statewide policy is supported by other law as well.  For example, Title IX of the federal Education Amendments of 1972 was enacted to support sex-segregated women’s athletics, and its implementing regulations provide for sex-separated sleeping quarters and locker rooms.  The FCPS policy’s mandate that biological males be permitted to compete, sleep with, and undress with women undermines the intent and integrity of Title IX, and threatens the safety and privacy of women.

The First Amendment of the U.S. Constitution prohibits government institutions from compelling individuals to adhere to particular ideological beliefs, and yet this is what the FCPS policy attempts to do.  The vast majority of people are willing to accept individuals who are experiencing gender identity issues, and are willing to prohibit bullying or discriminating against them.  But when compassion and tolerance transform into tyranny by the minority, compelling everyone else’s rights to give way to their desires, and everyone else’s speech to conform to their dictates, then the constitutional rights of others come into play.

So, what should happen next?

First and foremost, the Virginia Attorney General should sue to compel FCPS to adopt and implement a policy that conforms to the statewide policy.  Local school boards are not autonomous governing bodies that can do whatever they please.  They are creatures of the Commonwealth and are required to abide by governing state law.  State law requires school boards to adopt policies conforming to the model policy.  If the Attorney General sits back and allows FCPS to thumb its nose at the model policy, all the work of adopting it will be for naught.

Second, public interest groups that represent parents of FCPS students (e.g., Fairfax County Parents Association) should sue, particularly if the Attorney General does not do so.  Individual parents and/or students who are adversely affected by the FCPS policy should also consider doing so.

Third, students (but only with the solid support of their parents) should consider defying aspects of the FCPS policy that are clearly inconsistent with the model policy.  This might invite disciplinary action and harassment by the school system and by supporters of the current policy, but a courageous student and his/her parents could bring the issues to a head in this way.

Fourth, parents, students and other community members should write to the School Board and Superintendent via letter or email to voice their objections to the refusal by FCPS to follow its legal obligations under Virginia law.

Fifth, knowledgeable citizens should inform others about the School Board’s unlawful, discriminatory, unfair actions and policies.  Awareness of the Board’s defiance and illegal conduct is the first step in getting things changed for the better.

Sixth, and most importantly, citizens should press candidates for election to the School Board in November’s upcoming election to state clearly where they stand on this issue.  Citizens should vote for candidates who are committed to wholesale reform.

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