McKay sees “myriad” legal issues for state’s draft policies on transgender students

Students wear and wave Pride flags at Fairfax High School’s walkout (photo by Carys Owens)

Fairfax County Board of Supervisors Chairman Jeff McKay believes the county will be on “safe legal ground” if it chooses to not follow Virginia’s recently-proposed model policies that would limit the rights of transgender and other gender-nonconforming students.

Based on conversations with the school board, Fairfax County Public Schools (FCPS), and legal experts since the draft policies were unveiled earlier this month, McKay senses the school system will ultimately stick with its current policies, he told FFXnow yesterday (Wednesday).

The proposed policies would reverse regulations that FCPS adopted in 2020 affirming students’ right to access restrooms according to their gender identity and be called by their chosen names and pronouns. The regulation was updated last year based on state recommendations.

“If we do it and ignore [what] the governor is dictating here…my prediction based on everything I’m hearing is that the legal folks will say you’re on safe legal ground to continue the good practices that you have in place and not adhere to these new ones. That’s certainly what I’m being told preliminarily,” McKay told FFXnow.

McKay noted that, as has been reported elsewhere, legal experts have identified a myriad of legal problems” with the new proposed policies, including protections from discrimination based on gender identity in the Virginia Human Rights Act.

The cities of Falls Church and Alexandria have already indicated that they won’t adhere to the state policies. State Sen. Adam Ebbin (D-30), who represents parts of Fairfax County, Alexandria, and Arlington County, told FFXnow on Tuesday (Sept. 27) that there could be basis for a lawsuit.

“I think there’s existing law problems. I think there’s case law problems. I think there’s political problems,” McKay said. “And so, my suspicion is that we will likely be able to continue doing what we’re doing.”

The governor may be relying on the Dillon Rule as the rationale for arguing counties must adhere to the guidelines, if they’re adopted, McKay says.

Under that rule, localities only have legal authorities expressly granted to them by the state, but that doesn’t absolve the governor from the “obligation of being consistent with case law that’s already been established,” he said.

When asked whether the school system plans on taking legal action if the policies are adopted by the state, an FCPS spokesperson said they have no comment for now beyond a message that Superintendent Michelle Reid sent to families earlier this month, stating that FCPS was reviewing the draft policies.

“We will share more information when it is available,” the spokesperson said.

McKay noted that there’s precedent for not abiding by the new policies. Then-governor Ralph Northam issued his own policies on the treatment of transgender students in 2021, but most Virginia counties never adopted them.

“Most of the state never implemented the model policies that Governor Northam put in, as we know, and there have been no consequences for them at all,” McKay said. “We did implement them because we happen to think politically they were the right thing to do to protect our children.”

He then asked rhetorically, “If school districts across Virginia were allowed to ignore the last model policies, why shouldn’t school districts across Virginia be allowed to ignore the new ones?”

McKay expressed frustration that the state is attempting to dictate local school boards’ policies when the majority of FCPS’ budget is paid by county funds. He called it an “affront” to the locally elected school board, the Board of Supervisors, and constituents.

“When over 70% of our schools’ budget is being paid for by the Board of Supervisors, I don’t need a 20% shareholder in public education coming in and telling the school board what they have to do. When you start paying the bills for schools, then you can come in here and start telling us what to do,” he said.

McKay said it is good practice for the school board to “thoroughly review” the model policies, adding that there might be elements of the new guidelines that could be “worthwhile to adopt.”

Overwhelmingly, though, the policies getting the most attention will likely be rejected by the school board and constituents, he said.

The public can send comments on the proposed policies to Virginia’s regulatory town hall through Oct. 26.

McKay submitted a comment himself this week, saying the new model policies “serve no other purpose than to threaten some of our vulnerable children with discrimination and potentially violence.”

The chairman believes, in the end, FCPS students will be able to continue to count on the current inclusive policies staying in place.

“The hope is that Fairfax County Public Schools, along with other Northern Virginia public school systems, can stick with the policies they’ve created themselves or the ones from previous from 2021,” McKay said. “And there will be no penalty and no issue from the Commonwealth if the county decides to stick with the policies they’ve created for their school system.”

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