Last week, the U.S. Department of Education’s Office for Civil Rights opened an investigation of Fairfax County Public Schools (FCPS) and four other Virginia school systems to determine whether their transgender policies violate Title IX of the Education Amendments of 1972 — the federal law prohibiting discrimination on the basis of sex in education programs receiving federal financial assistance.  The investigation was precipitated by an administrative complaint filed on February 3 by the America First Legal Foundation.

There can be no doubt about what the outcome of the investigation will be, for FCPS’s policies are the polar opposite of Title IX’s requirements, as interpreted by the U.S. Department of Education.  The stakes are enormous because the school system’s federal funding could be terminated or curtailed if it is violating the law.  FCPS currently receives about $50 million per year in federal funds.

In recent years, FCPS has been captivated by a tiny minority who believe without qualification that boys who assert they are girls are, in fact, girls and that they are entitled to be treated as girls in every respect (and likewise for girls whose psyches tell them they are boys).  Indeed, FCPS has adopted policies that make the interests of this minority superior to the interests of everyone else.  The school system has even ploughed ahead with pro-transgender initiatives when public opinion has opposed them by margins of 85 to 15 percent.  The reality is that “Trans rules the Fairfax Schools.”

In a situation like this, given the stakes involved, a prudent school system would carefully reexamine, and revise, its policies.  But there is no indication this will happen.  Common sense hasn’t prevailed in this realm in the past, and FCPS’s leaders seem to be dug in.  Most likely, they will spend millions of taxpayer dollars defending its discrimination against girls, all the way to the Supreme Court.

The Trump Administration’s Executive Orders

In its last year, the Biden administration declared that laws prohibiting “sex discrimination” should be interpreted to equate the term “sex” with “gender identity.”  For example, with regard to Title IX, the Biden administration took the position that Congress intended the term “sex” to mean each individual’s subjective feelings about his or her gender, rather than his or her biological sex.  Under this interpretation, if a biological male who identifies as a female wants to compete on the girls’ swim team, it would be “sex discrimination” to bar him from doing so.

The new administration disagrees with this interpretation.  President Trump has issued two important executive orders bearing on the question.  In Executive Order 14168, issued on day one, the President states that the Biden position “improperly transforms laws and policies designed to protect sex-based opportunities into laws and policies that undermine them, replacing long-standing, cherished legal rights and values with an identity-based, inchoate social concept.”  The Order further states that it would be improper to redefine “sex” to mean “gender identity” because that concept is based on “a subjective sense of self, disconnected from biological reality … and existing on an infinite continuum.”  Thus, under Executive Order 14168, the term “sex” will be interpreted to include “males” and “females,” and not the expansive concept of “gender identity.”

The second Executive Order, No. 14190, is entitled “Ending Radical Indoctrination in K-12 Schooling.”  It deals with promotion of ideological concepts, including gender ideology, in public schools.  Its purpose is to cut federal funding for programs that (i) promote “gender ideology and discriminatory equity ideology” and/or (ii) fail to protect parental rights under federal law.  The Order directs the Department of Education, and other federal departments and agencies, to investigate and take action against violations of Title IX and other federal laws.  Violations based on gender identity include rules that allow “use of intimate facilities and accommodations such as bathrooms or locker rooms specifically identified for persons of the opposite sex, and participating in athletic competitions or other extracurricular activities specifically designated for persons of the opposite sex,” as well as denying parental rights protected by federal law.

FCPS Policy Violates the Executive Orders

FCPS’s transgender regulation and its related guidance document establish a policy diametrically opposed to the federal government’s.  In FCPS:

• “Gender” is defined as a “socially constructed system of classification,” not as an inherent aspect of a person’s being.  “Gender identity” is described as a person’s “sense” of his or her gender, which can be “different than the sex assigned at birth.” “Gender expression” is defined as how a person presents their identity to others, which can “change over time and from day-to-day.”  And “gender fluidity” refers to a person who “may feel they are a girl some days and a boy on others, or a combination ….”
• The school system automatically accepts a student’s assertion of gender-expansive or transgender status, regardless of age, the definiteness of the assertion, the fluidity of the assertion, or other factors.  The school system also adopts, and mandates the use of, any name changes adopted by the student, as well as “preferred pronoun” changes that may conflict with normal English usage.  The regulation creates a complex set of rules for the name/pronoun designations, and violations can result in serious disciplinary action.
• Unless a student consents, a student’s assertion of gender dysphoria or transgender status is kept secret from his or her parents or guardians.
• The school system offers a “support team” to affirm the student’s decisions and to develop a timeline for transition from one gender to another.
• In sports, participation is fully permitted according to the student’s declared gender.
• Students who assert transgender status are permitted to use whatever locker rooms and restrooms they want.  It is impermissible for the only accommodation to be a private area or single-use facility.  What this means is that if a biological male wants to undress and shower in a girls’ locker room, he has an absolute right to do so, and if some or all the girls want privacy from him, they must each request alternative accommodations for themselves.  Thus, if a gym class includes twenty girls and one transgender biological boy, the transgender’s desires prevail, and the twenty other students must use restroom stalls, private areas elsewhere in the school, or alternative shower/changing times.
• If school-related activities require students to stay overnight in a hotel, students may be assigned to a room consistent with the student’s declared gender identity.  The regulation does not require prior notice to, or consent of, the other affected students, or their parents.

Aside from the regulation itself, FCPS has been actively adopting the agenda of transgender activists on additional issues.  Despite overwhelming public opposition, the school system has decided to combine boys and girls in unisex sex-ed classes that were previously conducted separately (e.g., classes on body changes in puberty), so that transgender students won’t need to choose whether to attend the boys’ or the girls’ class.  And, this year, FCPS is considering whether to start teaching kids about its notions of “gender identity” in early elementary grades.

The Upcoming Legal Battle Will Be Contentious, Disruptive and Costly

The Office of Civil Rights will almost certainly find that the FCPS policies listed above violate Title IX, and probably other federal statutes as well, such as the Family Educational Rights and Privacy Act (FERPA), which mandates parental access to student records.  Given the extreme content of the FCPS policies, it will probably be at or near the top of any list of enforcement targets.

The OCR investigation itself will be costly, and the ensuing litigation will be lengthy and expensive.  FCPS will presumably seek to enjoin any cut-off of funding while the litigation proceeds, and this might be successful, but the ultimate outcome for the school system is very risky.  Whatever a trial court finds, there will be appeals to the Court of Appeals, and, most likely, to the Supreme Court.  Millions of dollars — taxpayer money that is sorely needed for real education spending — will be wasted.

Other government entities and regulatory bodies have been rethinking the excesses of the transgender movement.  For example, the NCAA and the Virginia High School League have recently reversed their prior support for allowing biological males to compete in women’s sports.

If FCPS were governed by a sense of fairness to all, common sense, pragmatism, and fiscal responsibility, it would take prompt action to undo some of its policies that discriminate against the majority in favor of the tiny but vocal minority.  Will it do so?  It seems unlikely.