Bacon's Rebellion

Democracy Thrives in Sunlight

Dueling Claims of Victory in Transgender Lawsuit

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by

James A. Bacon
in , ,

by Emilio Jaksetic

On July 27, 2021, Judge J. Frederick Watson, with the 24th Judicial Circuit of Virginia, issued a decision on a lawsuit challenging the adoption of the Virginia Board of Education’s Model Policies for the Treatment of Transgender Students in Virginia’s Public Schools, reports The Virginia Star. Because Judge Watson dismissed the lawsuit for lack of standing, he properly did not rule on the substantive merits of lawsuit.

A copy of Judge Watson’s decision is available here. A copy of the Virginia Board of Education Model Policies is available here.

Despite dismissal of the lawsuit on procedural grounds, both sides claimed victory.

The Christian Action Network claimed victory on the grounds that Judge Watson’s decision included a ruling that the Model Policies is a guidance document and that school boards have the option to decide whether or not to follow it. Furthermore, the Christian Action network claimed “the judge is granting school boards the right to decline to act on Virginia’s ‘Model Policies,’ which is exactly what our lawsuit intended.”

The ACLU of Virginia claimed victory on the grounds that dismissal of the lawsuit was warranted, and asserted “[a]ll school boards in the state are legally required by law to pass policies aligning with the model policies for the 2021-22 school year.”

Because of the limited procedural nature of Judge Watson’s decision, both claims of victory on the merits are technically premature. However, the Virginia ACLU’s claim of victory is more sound than the Christian Action Network’s claim of victory.

Because Judge Watson dismissed the lawsuit on procedural grounds, his statements about (1) the Model Policies being a guidance document, and (2) what decision a school board might make about adopting the Model Rule are mere dicta, not legal rulings. Judge Watson’s procedural decision on standing does not substantively address what Christian Action Network claims to be the right of a school board to decline to adopt the Model Policies. At most,  Judge Watson’s decision — if followed by other Virginia courts — merely gives Virginia school boards standing to contest the Virginia Board of Education’s authority to require adoption of the Model Policies. It says nothing about the ultimate outcome of any legal contest that would arise if a school board declines to adopt the Model Policies and is sued by the Virginia Board of Education.  Christian Action Network’s claim of victory is wishful thinking.

Given the language of Virginia Code Section 22.1-23.3(B), the ACLU of Virginia has better grounds for feeling confident of victory if the Virginia Board of Education sues any school board that declines to adopt or follow the Model Policies.

Moreover, even if Virginia courts were to rule that a school board has the authority to decline to adopt or follow the Model Policies, then any school board that does so probably will find itself the target of a claim of unlawful discrimination under Virginia’s Human Rights Act, Virginia Code, Title 2.2, Chapter 39. And the school board would then face the possibility of a determination of unlawful discrimination by the Virginia Attorney General, Office of Civil Rights, such as happened to Loudoun County Public Schools in 2020.  See, for example, this article and this press release by Attorney General Mark Herring.

If Christian Action Network seeks to help Virginia parents vindicate “the fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child”  under Virginia Code Section 1-240.1, it had better prepare for a long, difficult battle against “woke” educators and their formidable array of allies.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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20 responses to “Dueling Claims of Victory in Transgender Lawsuit”

  1. LarrytheG Avatar
    LarrytheG

    I dunno – here’s what I read: ” The groups suing over the policies, including the Christian Action Network, Founding Freedoms Law Center and the Family Foundation of Virginia, claimed that the model policies, which provide guidelines for policies or provisions that school districts may adopt, infringe on the First Amendment rights of teachers and parents who oppose homosexuality or believe that gender is binary and fixed at birth. ”

    that sounds like more than a complaint against a model policy.

    They seem to be opposing the idea that schools can implement such policies because they harm ” First Amendment rights of teachers and parents who oppose homosexuality”.

    1. Stephen Haner Avatar
      Stephen Haner

      If Joe is convinced he’s a Jill, and would like that name used and would like to dress as a female, not quite sure how that harms me. Nor do I give a damn where he (sorry, she) pees. What they are opposing, Larry, is this further erosion of the social order they have lived with all their lives, which they see as ordained by God. It’s kinda like the vaccine thing — the harder one group pushes the other to “conform,” the more determined non-conformist they become. Duh….

      The politicos, of course, are just whoring for votes as usual, and will switch when the polling does. Joe might hit puberty and reconsider his/her position and decide he wants to screw girls after all.

      The one place this gets dicey for me is if Joe shows up for girls’ sports. Later in life, Trans G GI Joe doesn’t worry me at all.

      1. tmtfairfax Avatar
        tmtfairfax

        Strongly agree on the sports participation issue. Girls sports are very important. We supported our daughter’s participation in them from kindergarten through high school. Males have certain physical attributes that give them a distinct advantage over females. It’s not fair to females to make them compete with males absent a co-ed team situation.

        Last winter on one of my COVID walks, I went to Langley HS and watched part of an outdoor-indoor track meet. Many of the competitions were single-sex in nature. But some, such as various races, were not. In each and every instance, males prevailed and, as group, finished well ahead of the other gender. In other words, the fastest boys were faster than the fastest girls. And the slowest boys were faster than the slowest girls. It’s not fair.

        One counter tactic is to call supporters of allowing males to compete with females is to label and relabel them as anti-female bigots. Accuse the NCAA as an organization of bigots. Attack woke legislators as anti-female. You don’t need to use the paradigm of the woke.

      2. LarrytheG Avatar
        LarrytheG

        re: ” further erosion of the social order they have lived with all their lives, which they see as ordained by God.”

        I see it as providing basic civility to humans who are different, not “shaming” them and institutionalizing their vulnerability to bullying and other discriminatory treatment – “GOD” as envisioned by some be damned. My GOD is not that way!

        I’m also not sure about sports – that’s even beyond “GOD” !

        Like a lot of these issues, change is ongoing and we need to work to find our way through it – as opposed to pitching a fit and raising hell akin it.

  2. James A. Bacon Avatar
    James A. Bacon

    What a terrifying thought — what if the “guidance” documents issued by the Northam administration could be enforced as rule of law? Then the guidelines are no longer guidelines but rules and regulations. I cannot believe that is true. If so, it would represent a huge step forward in the assertion of authority by the state over local governments.

    As DJ Rippert has repeatedly warned regarding the Dillon Rule in Virginia, which grants local governments no power but that bequeathed by the state, conservatives would come to regret the legal doctrine. The day would come when Democrats imposed their policies across the state with no respect to local differences of opinion. That day, apparently, has arrived.

    It is also sad to see that the ACLU is carrying water for the Department of Education. The ACLU has abandoned any pretense of being a nonpartisan organization. It is a fully functioning, fully integrated gear in the machinery of the “progressive” political class.

    1. LarrytheG Avatar
      LarrytheG

      Do you give credit to Northam and VDOE that they DO let local school boards make these decisions as opposed to having such decision dictated by the Governor and GA statewide as is happening in other states?

      ” Thirty-three states have introduced more than 100 bills that aim to curb the rights of transgender people across the country, with advocacy groups calling 2021 a record-breaking year for such legislation.  Many of these bills are rapidly making their way through state legislatures. On April 6, Arkansas became the first state to outlaw providing gender-affirming treatment to minors, a move that the American Civil Liberties Union said would “send a terrible and heartbreaking message” to transgender youth across the country.”

      So you oppose top-down Statewide edicts?

      1. Stephen Haner Avatar
        Stephen Haner

        The point is this is not a local option, not at all.

        1. LarrytheG Avatar
          LarrytheG

          ” Model Policies is a guidance document and that school boards have the option to decide whether or not to follow it.”

          ya’ll have problems dealing with words?

          1. emjak Avatar
            emjak

            Read the language of Virginia Code Section 22.1-23.3(B) . There’s a link to it in the BR article. The word “shall” is mandatory, not discretionary. The ACLU of Virginia has no problem with seeing that statutory provision as being mandatory on school boards. There’s a link to the ACLU article in the BR article.

          2. LarrytheG Avatar
            LarrytheG

            The “shall” just says that VDOE will generate a model policy, right?

            ” Because Judge Watson dismissed the lawsuit on procedural grounds, his statements about (1) the Model Policies being a guidance document, and (2) what decision a school board might make about adopting the Model Rule are mere dicta, not legal rulings.”

            Do ya’ll have trouble reading?

          3. Brian Leeper Avatar
            Brian Leeper

            Not me. I learned to read in a public school up north.

          4. LarrytheG Avatar
            LarrytheG

            I had benefit (or disability) of a dozen different public schools all over the US, North and South but of course none of them meshed their curricula with each other so there was a certain pot-pourris aspect to it.

        2. DJRippert Avatar
          DJRippert

          If the Republicans ever regain control of Virginia, even for a short time, they need to gut Dillon’s Rule. Our state government should focus on the state song, state bird and state fish. They should leave the heavy lifting for the localities.

          1. LarrytheG Avatar
            LarrytheG

            Most of the Republican states seem to be Dillon rule – and are laying down state-wide Covid rules – no choice for localities.. right?

      2. tmtfairfax Avatar
        tmtfairfax

        What does curbing the rights of transgendered people mean? As far as using a men’s room, I could care less who uses it. They generally smell bad and have dried or drying piss on the floor. Ask my wife what she thinks about uni-sex restrooms. And I doubt she is alone.

        But extending rights for people with the physical appearance of their birth sex but identifying with other gender in locker rooms, showers, etc., aren’t we forgetting the rights of other people? Why don’t men have a right not to be viewed by a man who still looks like a woman? Or women having a right not to be viewed by a woman who still looks like a man?

        Traditionally, courts have required governments to balance conflicting rights and not automatically choose one side or the other. And if the minority is to win automatically, what about the person who believes they should not wear masks?

        I doubt any ACLU lawyer or a member of Herring’s staff could answer these questions in a manner that states a fair rule of law. Progressive law is no different than Three Card Monte. Many lawyers have sunk to the level of journalists.

        1. LarrytheG Avatar
          LarrytheG

          It’s in the courts and rulings made including SCOTUS, no?

    2. DJRippert Avatar
      DJRippert

      “As DJ Rippert has repeatedly warned regarding the Dillon Rule in Virginia, which grants local governments no power but that bequeathed by the state, conservatives would come to regret we were not a Dillon Rule state. ”

      Typo.

      Conservatives would come to regret that we are a Dillon Rule state.

      Republicans should have seen the writing on the wall and backpedaled hard against Dillon’s Rule.

      Socialists / Marxists are the most authoritarian people in the world. They will demand that the state make all decisions. China, Russia, North Korea … the writing is on the wall.

      Local autonomy would have allowed people in different parts of Virginia to live their lives more as they see fit.

      But the plantation elite within the Republican Party just couldn’t muster the guts to let people run their own lives back when they had the power to do so.

      The Descendants of Pocahontas just can’t help themselves.

      1. James A. Bacon Avatar
        James A. Bacon

        Oops! Correction made.

      2. LarrytheG Avatar
        LarrytheG

        Curious what Maryland is doing……..

    3. Eric the half a troll Avatar
      Eric the half a troll

      “I cannot believe that is true.”

      Is it not how the law was written? Why would it not be true? Do you think the court should override duly passed legislation and, if so, on what grounds? As you note we are a Dillon Rule state and Republicans used that power on a regular basis while they controlled the legislature. Now the shoe is on the other foot.

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