Lynchburg Circuit Court Judge J. Frederick Watson dismissed lawsuits challenging the Virginia Department of Education’s (VDOE) model transgender policies. In the decision published Tuesday, Watson found that the plaintiffs the Christian Action Network (CAN) and the Founding Freedoms Law Center (FFLC) do not have standing. The plaintiffs had argued that the VDOE improperly responded to public comments.
“VDOE contends that the appellants are not aggrieved by the model policies, which are directed not at the appellants but at the local school boards, which have flexibility to fashion policies consistent with the model policies,” Watson’s decision states. “In these cases, the appellants do not have standing to challenge the model policies. Their dissatisfaction with VDOE’s response to their comments does not create an immediate, pecuniary, or substantial interest in this litigation, but only a remote or indirect interest.”
In a press release, Attorney General Mark Herring said he was proud of the work his team did to defend the VDOE.
“Every single child who goes to school in the Commonwealth deserves a positive, safe, nurturing learning environment, without the fear of discrimination or harassment simply because of who they are,” Herring said. “We must do all we can to ensure that transgender, nonbinary, and gender nonconforming students feel supported and protected and this model policy gives school divisions the roadmap to doing just that in their schools.”
In a press release, FFLC Legal Counsel Josh Hetzler said, “One unfortunate consequence of today’s dismissal of our lawsuit against the VDOE is that the VDOE continues to be unchecked and unaccountable, even when it so clearly violates the law, the constitution, and its own required procedures.”
Hetzler disputed the court’s ruling that only school boards have standing in the case. He wrote, “That ignores the reality that it is students, parents, and teachers who will actually be impacted by the policies the school boards adopt ‘consistent with’ those Model Policies.”
The FFLC and CAN had argued that the policies could be harmful to students.
At a hearing last week, CAN Legal Counsel David Carroll said, “All the school districts are supposedly to be subjected to these rules, including, you’re not allowed to question anybody going in to the opposite sex bathroom. So is there a danger to children there? You bet there is. Do they have standing to be concerned about it? Of course they do.”
The ACLU of Virginia was part of a group of organizations that filed an amicus brief in opposition to the lawsuit earlier in July. They praised the decision in a press release.
“This ruling is important progress and emphasizes the continued need to protect transgender and non-binary youth in Virginia,” Equality Virginia Executive Director Vee Lamneck said. “These policies will create safer classrooms and will reduce bullying, discrimination, and harassment. It’s imperative school boards adopt these policies as soon as possible because the lives of transgender students are at risk.”
Hetzler said there’s still some good news for school boards who have declined to implement the apparently mandatory policies.
“One significant outcome is that the court’s opinion clarifies that VDOE’s Model Policies are only ‘guidance.’ While we disagree that the Model Policies were designed to be merely guidance, we urge school boards to take Judge Watson at his word by disregarding these heavy-handed suggestions from the VDOE,” Hetzler said. “Moreover, school boards should also be breathing a sigh of relief since the Attorney General’s Office is now on record (during Wednesday’s court hearing) that boards who reject this advice as wrong for children in their community need not be concerned about losing state funding as a result.”
CAN President Martin Mawyer called the result a victory.
“Our ultimate hope was for the judge to rule the ‘Model Policies’ issued by the Virginia Department of Education were merely guidelines with no force of law,” Mawyer said in a CAN article. “Clearly, the judge is granting school boards the right to decline to act on Virginia’s ‘Model Policies,’ which is exactly what our lawsuit intended.”
Hetzler emphasized that the case had not been dismissed on the merits and threatened legal action against school boards that do follow the VDOE’s model policies.
“So, should any school boards choose to follow the VDOE Model Policies, Founding Freedoms Law Center will be here fighting to protect children who lose their privacy rights, parents who lose their parental rights, and teachers who lose their job over illegally compelled speech,” Hetzler said. “In fact, we may even have to challenge certain individual school board policies in the weeks to come. Stay tuned.”
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Eric Burk is a reporter at The Virginia Star and the Star News Network. Email tips to [email protected].
