The U.S. Department of Education, Office for Civil Rights, opened an investigation last week into Fairfax County Public Schools and four other Virginia School Systems to determine if their transgender policy violates Title IX of Education Amendments of 1973 — the federal law that prohibits discrimination based on sex for education programs receiving federal funding. An administrative complaint was filed by the America First Legal Foundation on February 3.

The outcome of this investigation is clear, since FCPS’s policy is the exact opposite of Title IX requirements as interpreted by U.S. Department of Education. If the school system violates the law, its federal funding may be curtailed or terminated. FCPS receives approximately $50 million in federal funding per year.

FCPS was captivated in recent years by a small minority that believes without qualification that girls who claim to be boys are in fact girls, and they deserve to be treated like girls in all respects (and the same for girls whose minds tell them that they are boys). FCPS has implemented policies that place the interests and needs of this small minority above the of the rest of the school. Even though public opinion was overwhelmingly against transgender initiatives, the school system pushed ahead with them. Transgender is “ruling the Fairfax Schools.”

A prudent school system, in a situation such as this, would reexamine and revise its policies. There is no sign that this will occur. FCPS leaders have not always acted with common sense, but they seem to be firmly entrenched in their position. They will most likely spend millions of dollars in taxpayer money to defend their discrimination against girls all the way up to the Supreme Court.

Executive Orders of the Trump Administration

The Biden administration stated in its final year that laws against “sexism” should be interpreted as equating the term “sex”, with “gender identification”. For instance, Title IX was interpreted by the Biden Administration to mean that Congress intended the term “sex,” to refer to each individual’s subjective feelings regarding his or gender, and not their biological sex. According to this interpretation, it is “sexism” to prevent a male biologically who identifies himself as female from joining the girls’ swimming team.

This interpretation is not shared by the new administration. The question has been addressed by two executive orders issued by President Trump. In Executive Order 140168 issued on the first day, the President stated that the Biden’s position “improperly transformed laws and policy designed to protect the sex-based opportunity into laws and polices that undermined them, replacing longstanding, cherished, legal rights and values with a concept based on identity, which is inchoate.

The second Executive Order No. 14190, entitled “Ending Radical Indoctrination in K-12 Schooling”, deals with the promotion of ideological concepts, including gender ideology, in public schools. The second Executive Order, No. 14190, is titled “Ending Radical indoctrination K-12 Schooling”. It addresses the promotion of ideologic concepts, such as gender ideology, within public schools. The purpose of the order is to reduce federal funding to programs that promote “gender ideologies and discriminatory equity ideologies” or (ii) do not protect parental rights as per federal law. The Order requires the Department of Education and other federal departments to investigate violations of Title IX, as well as other federal laws, and to take appropriate action. The Order includes rules that allow the “use of intimate accommodations and facilities such as bathrooms and locker rooms designated for people of the other sex” and participation in athletic competitions and extracurricular activities.

FCPS policy violates Executive Orders

The FCPS transgender regulations and the related guidance document set a policy that is diametrically opposite to that of the federal government. In FCPS

• The term “gender” is a socially constructed classification, not an intrinsic aspect of who a person is. The “sense” a human has of their gender can differ from the sex they were assigned at birth.
• The school system accepts automatically a student’s affirmation of gender-expansive status or transgender, regardless of their age, how definite or fluid the affirmation is, or any other factor. The school system will also accept and use any name changes made by the student as well as any “preferred pronouns” that are in conflict with standard English usage. This regulation has a complicated set of rules that govern the use of pronouns and names. Violations can lead to serious disciplinary actions.
• Parents or guardians are not informed of a student’s gender dysphoria, or that they are transgender unless the student gives consent.
• The school system provides a “support group” that will affirm the student’s decision and develop a timeline to transition from one gender into another.
• The student’s gender is not a factor in sports participation.
• Students who claim transgender identity are allowed to use any locker room and bathroom they choose. The only option for accommodation cannot be a single-use or private facility. This means that if the biological male wants undressing and showering in a girl’s locker room, then he is entitled to do so. If some or all of the girls would like privacy, then they can request other accommodations. If a gym class has twenty girls, but one biological transgender boy, then the transgender will have the right to do so, while the other twenty students may be required to use the restrooms or private areas in the school.
• Students may be assigned a room that matches their gender identity if school-related events require them to spend the night in a hotel. This regulation does not require the consent or prior notification of other students or parents.

FCPS is actively promoting the agenda of transgender activist on other issues. The school system decided to combine classes previously taught separately to boys and girls ( for example, classes on puberty body changes) despite overwhelming public opposition. This will allow transgender students to not have to choose between the boys’ or girls’ class. FCPS will also be deciding whether or not to begin teaching “gender identities” in the early elementary grades this year.

The upcoming legal battle will be contentious, disruptive and costly

Office of Civil Rights (OCR) will most likely find that FCPS policies violate Title IX and other federal laws, including the Family Educational Rights and Privacy Act, which requires parental access to student records. The FCPS policies are likely to be near or at the top of any enforcement list due to their extreme content.

OCR’s investigation will cost a lot, and the threat of federal funding being cut will lead to expensive, lengthy litigation. FCPS is likely to try and stop any funding cuts while the litigation continues. This could be successful but the final outcome for the school district is extremely risky. There will be appeals from the trial court to the Court of Appeals and most likely to the Supreme Court. Millions of taxpayer dollars, which are desperately needed to fund real education, will be wasted.

Other government agencies and regulatory bodies are rethinking transgender movements’ excesses. The NCAA and Virginia High School League, for example, have reversed their previous support of allowing biological men to compete in female sports.

If FCPS was governed by fairness, common sense and fiscal responsibility it would act quickly to reverse some of its policies which discriminate against the vast majority to favor a small but vocal minority. Will it? It is unlikely.