5 Virginia school districts stand firm against federal transgender bathroom policy demands

PRINCE WILLIAM COUNTY, Va. - Five Virginia schools are choosing to defy federal law on transgender student bathroom policies after the U.S. Department of Education gave until Friday to comply with Title IX. 

Prince William County Schools, Fairfax County Public Schools, Alexandria City Public Schools, Arlington Public Schools and Loudoun County Public Schools are all opting to keep their current bathroom policies. 

This means students can choose to use the bathroom that aligns with their gender identity. 

Ultimately, the school districts cited differing interpretations of the Department of Education’s requirements and current state law. The Department of Education’s Office of Civil Rights asserts that letting students use bathrooms and locker rooms that correspond with their gender identity instead of their biological gender violates Title IX.

The backstory:

Several years ago, a Virginia-based federal appeals court ruled transgender students can use restrooms consistent with their gender identity.

But this past January, President Donald Trump signed an executive order that essentially called on the Department of Education to block federal funds to schools that support students who identify as transgender. 

Days later, a conservative group filed a complaint with the Department of Education against five Northern Virginia school districts over their bathroom policies. 

In late July, the DOE came back and said its investigation found the following districts are in fact in violation of Title IX: Alexandria City Public Schools, Arlington Public Schools, Fairfax Public schools, Prince William County Public Schools and Loudoun County Public Schools.

The DOE said specifically its Office for Civil Rights "determined that the Divisions’ policies, which allow students to access intimate, sex-segregated facilities based on the students’ subjective ‘gender identity,’ violate Title IX of the Education Amendments of 1972." 

The DOE announced if the school districts don't reverse their policies by August 15, they "risk imminent enforcement action including referral to the U.S. Department of Justice."

Prince William County's bathroom policy

What we know:

The OCR's proposed resolution, according to PWCS, would force the school division to violate an existing Virginia law, and they are now seeking further dialogue with federal officials to find a resolution.

The central issue, however, revolves around the OCR's proposed resolution, which PWCS believes would force it to violate an existing Virginia law regarding the treatment of transgender and gender-non-conforming students and their access to school facilities. PWCS’s stance is informed by the Fourth Circuit’s decision in Grimm v. Gloucester County School Board.

The Office of Civil Rights' (OCR) proposed resolution would require Prince William County Public Schools (PWCS) and other Northern Virginia school districts to take the following actions:

Rescind Policies: The districts would need to rescind policies and regulations that allow students to access intimate facilities, such as restrooms and locker rooms, based on their "gender identity" rather than their sex.

Separation by Sex: The OCR's resolution would require that any future policies related to facility access must separate students "strictly on the basis of sex" to comply with Title IX.

Address Concerns: The investigation found that students in the divisions were avoiding using school restrooms because of the existing policies, and there were reports of inappropriate behavior by male students in female locker rooms.

The OCR's investigation, announced on July 25, concluded that five Northern Virginia school districts were in violation of Title IX. The OCR determined that the districts' policies, which allow students to access sex-segregated facilities based on "gender identity" rather than their sex, violate federal civil rights law.

According to a press release from the U.S. Department of Education, the proposed resolution agreement would require the districts to rescind these policies and ensure that any future policies related to access to intimate facilities must separate students strictly on the basis of sex. The department offered the districts 10 days to voluntarily agree to the changes or risk enforcement action, which could include a referral to the U.S. Department of Justice.

PWCS has requested further dialogue with the U.S. Department of Education to ensure that any resolution aligns with federal law and the needs of its student community. PWCS remains "open to working with OCR to find a path forward that honors both our legal obligations and our values as a school division."

READ MORE: Loudoun County School Board debates bathroom policy

Fairfax County Public School's bathroom policy

FCPS issued the following statement Friday afternoon: 

"Today, FCPS submitted a follow-up request to the U.S. Department of Education’s Office for Civil Rights (OCR) outlining why our policy is consistent with controlling state and federal law. We have asked OCR to stop further action while this legal issue is clarified by the courts – the branch of government charged under our U.S. Constitution to interpret and state what the law is. While this case is pending, FCPS policies and regulations will stay aligned with Virginia law and the rulings of the federal Court of Appeals for the Fourth Circuit. FCPS remains dedicated to creating a safe, supportive, and inclusive school environment for all students and staff members, including our transgender and gender-expansive community. Any student who has a need or desire for increased privacy, regardless of the underlying reason, shall continue to be provided with reasonable accommodations. We look forward to a strong start to our school year, resolute in our commitment to academic excellence and opportunity for each and every student in a safe and welcoming environment."

Alexandria City and Arlington County's bathroom policy

Dig deeper:

See Alexandria City Public Schools statement below. 

See Arlington County Public Schools statement below.