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FIRST ON FOX: A major Virginia school district outside Washington, D.C., is facing a demand to rescind one of its policies that is alleged to be keeping parents in the dark if their child begins showing signs of transitioning genders at school.
America First Legal (AFL), a Trump-aligned lawfare group, is threatening litigation against the Fairfax City Public Schools (FCPS) system unless it rescinds Regulation 2603 and its accompanying policies, arguing it creates “a dual-track system in which FCPS actively supports and documents a student’s social transition at school while presenting parents with an incomplete—and materially misleading—account.”
In particular, AFL is taking issue with some of the district’s guidance that tells educators to refrain from “out[ing]” a student to their parents in district-wide information systems that they have access to, while requiring name and pronoun changes that students request to be made in the district’s information systems that are faculty-facing only. The policy also includes guidance notifying educators they do not need to obtain parental permission to affirm a student’s new gender identity, and permits students to choose the locker or bathroom of their choice without parental permission, or even notifying them.
The legal demand, on behalf of a client with students in the district, follows a Supreme Court decision in March that America First Legal says has proven withholding a student’s desire to transition genders from their parents is against the law. “There can be no serious dispute that FCPS’s policies mandate the very conduct the Supreme Court has now condemned,” AFL’s letter to FCPS Superintendent, Dr. Michelle Reid, states.
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A transgender flag waves at an undisclosed location on an undisclosed date (left). A judge uses his gavel (right). (Getty Images/iStock)
AFL is referring to Mirabelli v. Bonta, during which the Supreme Court overturned a lower court ruling that rejected pleas from parents of students in California schools to cease hiding their children’s gender transitions. AFL also argues in its letter to FCPS that Mirabelli v. Bonta “built directly on” Mahmoud v. Taylor, another case that invalidated school policy related to giving parents the right to opt their children out of educational programming. A school district blocked the opt-out policy, but parents demanded it was their right to know what their kids were being taught and, if they wish, excuse them from certain programming that may violate their sincerely held religious beliefs.
“The Court also made clear that the constitutional violation is not confined to the Free Exercise Clause. The policies independently implicate the fundamental Due Process right of parents—religious and nonreligious alike—to direct the upbringing and education of their children, including decisions bearing on a child’s mental health,” AFL adds in its letter. “Because gender dysphoria ‘has an important bearing on a child’s mental health,’ policies that both conceal relevant information from parents and affirmatively facilitate a child’s social transition at school likely infringe these constitutional protections.”
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Meanwhile, AFL says that FCPS’s policies also violate the Family Educational Rights and Privacy Act (FERPA) of 1974, which guarantees parents the right to view their child’s educational records while they are under 18.
Fairfax County Public Schools bus is seen outside of Lutie Lewis Coates Elementary School in Herndon, Virginia, Thursday, May 11, 2023. (Salwan Georges/The Washington Post via Getty Images)
The guidance on gender identity from FCPS appears to be aware of potential FERPA violations, with the policy warning educators that if a parent or guardian requests access to see their child’s records, they will have access to both the child’s chosen and given name.
“If a student transitioning at school is not ready to share with their family about their transgender status, this should be respected,” the guidance instructs. “In this scenario, school staff should make a change socially, calling the student by the chosen name, while their official [school database] information remains the same.”
FCPS told Fox News Digital it is reviewing the letter from AFL.
In January, AFL also filed a federal civil rights complaint over this same matter. In response to that, the district told Fox News Digital in a statement that “FCPS remains committed to fostering a safe, supportive, welcoming, and inclusive school environment for all students and staff.”
“FCPS policies and regulations will continue to stay aligned with Virginia and federal law,” the district added in a separate statement in response to this article. “We continue to partner with all families to provide a safe, supportive, and inclusive school environment for all students and staff members, including our transgender and gender-expansive community.”
A transgender rights supporter takes part in a rally outside of the U.S. Supreme Court as the justices hear arguments in a case on transgender health rights in Washington, DC, on Dec. 4, 2024. (Kevin Dietsch/Getty Images)
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Last year, the Trump administration put FCPS and a handful of other Northern Virginia school districts on a “high risk” status due to their policies on intimate spaces for females and transgender students, threatening their federal funding and putting it in a “reimbursement only” payment status.
“The Department of Education has already placed FCPS on a restricted status related to Title IX noncompliance, with related proceedings pending before the U.S. Court of Appeals for the Fourth Circuit,” AFL’s civil rights complaint points out. “This complaint independently establishes that FCPS’s current practices also risk federal education funding for violations of FERPA. I invite the Department of Education to take official notice of the existing Title IX enforcement posture as relevant context for federal oversight and remedial measures.”
