The Tip of the Transgender Spear in Virginia

Fairfax County School District has been at the forefront of the transgender issue debate.

By Nancy Flory Published on May 10, 2017

One Virginia school district was ahead of the curve. Even before President Obama issued his “transgender bathroom” rule, Fairfax County was planning to allow students access to bathrooms and locker rooms that did not correspond to their sex. They rushed the vote on the policies without giving parents the chance to respond. Now parents are fighting back. Last week, the Family Research Council hosted a panel led by FRC senior legal fellow Cathy Ruse to help equip parents for the fight.

Parents Fight Back

On May 7, 2015, Fairfax County School District voted 10-1 to allow transgender students to access bathrooms and other facilities that did not correspond with their biological sex. At a meeting, parents were told that the policies were necessary to protect transgender students and required by law. Neither were true, said Ruse. Parents requested a public hearing about the policies, but the school board refused. Normally, it would take months to make policy changes. It took the school board all of two weeks to vote to install these policies.

Some parents want to know why.

Rushing to Embrace Transgenderism

It takes a systemic approach to implement changes, said Elizabeth Schultz. Schultz is a Fairfax County School Board Member and a parent. They are not quick procedures. “From origination to full implementation of the adoption of gender identity within Fairfax County happened in a matter of weeks,” Schultz said. In this case, there was no study or community engagement. People on both sides of the issue are dissatisfied. They’ve “never … seen a consultant report” or had a data-driven discussion on how to address transgender issues.

“I was stunned,” said Meg Kilgannon, Executive Director of Concerned Parents and Educators of Fairfax County and a parent. “How could something so very extreme have happened? And how was it done in two weeks?” It took ten years to put in place new school start times, she said. Kilgannon’s organization has taken steps to reverse the implemented policies. Kilgannon warned that if this could happen in Fairfax, it can happen anywhere. She suggested ways for other parents to fight changes in other school districts. Kilgannon encouraged both parents and concerned members of the community to get involved.

Transgender Students and the Law

Josh Hetzler is the Legislative Counsel for the Family Foundation of Virginia. He said that Virginia has been the epicenter of the transgender issue. Particularly Fairfax County, as it is the 10th-largest school district in the nation. Hetzler said there’s been a lot of confusion regarding the law. “Depending on who you talk to, you’re going to hear totally different things,” he explained. Part of the confusion has to do with Title IX and the Obama administration’s reinterpretation of the 1972 law regarding sex of students. “What they said was basically, ‘We are going to reinterpret the word sex to now include sexual orientation and gender identity,'” said Hetzler. “In 1972 they didn’t think they needed to define ‘sex.'”

The 4th Circuit Court of Appeals questioned whether federal agencies, state or school boards would have the final say on the issue. The law has not yet been settled, he said.

Besides working with federal law’s Title IX, Virginia also has the Dillon Rule, which limits the power of Fairfax County. The county admits that “the Dillon Rule narrowly defines the power of local government. It also states that if there is any reasonable doubt whether a power has been conferred on a local government, then the power has not been conferred.” Fairfax County doesn’t have the power to revise nondiscrimination or harassment categories, Hetzler said. That’s especially true of those “that the General Assembly hasn’t included in the Virginia code.”

The transgender issue was “hanging by a thread,” but it “was beginning to infiltrate school boards over a lawless letter.” At just the right moment it seemed, Hetzler noted, a new administration came to town. The Trump administration revoked the letter. But people at the grassroots level are still needed to make a change.

The main takeaway, Hetzler said, is that elections matter. The rule of law is only as good as those who enforce and uphold it. “We’ve got to elect people who have the right values and who have the courage to uphold them when it’s difficult, because it’s a lot of pressure.”

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