Virginia schools can sue US Education Dept over transgender policies, US court rules
By Daniel Wiessner
Oct 15 (Reuters) - A US appeals court on Thursday revived challenges by two Virginia school districts to the US Department of Education's finding that it was illegal for them to allow transgender students to use bathrooms and other facilities that matched their gender identity.
The Richmond, Virginia-based 4th US Circuit Court of Appeals in a 2-1 decision said a judge was wrong to rule that the lawsuits by the school boards in the city of Arlington and Fairfax County could only be heard in the US Court of Federal Claims and not Virginia federal court where they were filed.
The Court of Federal Claims has jurisdiction over cases seeking monetary damages from the federal government, but the 4th Circuit said the schools' cases include other claims and seek broader types of relief including injunctions barring future enforcement.
The Education Department and lawyers for the school boards did not immediately respond to requests for comment.
President Donald Trump's administration has moved to curb legal protections for transgender people in virtually every facet of American life, including education. Trump has said the government's official policy is that male and female are the only two sexes and are immutable, and directed agencies to make policies in line with that edict.
The Education Department has threatened to cut funding to schools in at least three states over policies that bar disclosing students' transgender status to parents. Last month, the administration sued to block public schools in Kansas City, Kansas, from facilitating gender transitioning for transgender students.
Like many US public schools, the Fairfax and Arlington school boards had adopted policies allowing transgender students to use bathrooms, locker rooms and other accommodations matching their gender identity.
The Department of Education last year found that those policies violated Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs that receive federal funding. The department designated both districts “high-risk” in the federal grant system and moved them to reimbursement-only payment until they changed their policies.
The districts filed separate lawsuits last year seeking declarations that their policies comply with Title IX and that the department acted in violation of federal law.
US District Judge Rossie Alston in Alexandria, Virginia, ruled last year that because the cases involved claims for money damages arising from contracts between the schools and the Education Department, they belonged in the Court of Federal Claims.
The 4th Circuit on Thursday reversed that order. Circuit Judge Alison Rushing, a Trump appointee, was joined by Circuit Judge Albert Diaz, an appointee of Democratic former President Barack Obama.
Another Trump appointee, Circuit Judge Julius Richardson, dissented, writing that the cases belonged in the Court of Federal Claims because the schools' "demand for prepayment" was the focus of the lawsuits.
The cases are Fairfax County School Board v. McMahon and Arlington School Board v. McMahon, 4th US Circuit Court of Appeals, Nos. 25-2087 and 25-2107.
For the school boards: Timothy Heaphy of Heaphy Smith Harbach & Windom
For the Department of Education: Abhishek Kambli of the US Department of Justice
Read more:
US government says Virginia school gender policies unlawful
Transgender student wins as US Supreme Court rebuffs bathroom appeal