FFLC and AFL Send Legal Memo to VA School Boards on Recent SCOTUS “Transgender” Cases
The Founding Freedoms Law Center (FFLC) and America First Legal (AFL) joined forces to send a joint legal memo to school board members across Virginia to educate them about recent legal changes on matters affecting sex and “gender identity” within public schools. The letter warns school boards that many district policies on sex-separated facilities, athletics, and parental notification are now legally indefensible in light of recent U.S. Supreme Court decisions.
Click here to view the letter.
The seven-page memo explains that the Supreme Court's rulings this year in West Virginia v. B.P.J. and Mirabelli v. Bonta fundamentally altered the legal landscape governing Title IX, the Equal Protection Clause, and parental rights. The memo states that these decisions effectively abrogate the Fourth Circuit's 2020 ruling in Grimm v. Gloucester County School Board, which many Virginia districts have relied on to justify granting students access to sex-separated spaces based on gender identity rather than biological sex.
Among other things, the memo calls on school boards to:
Review all policies governing athletics, locker rooms, restrooms, and overnight accommodations to ensure eligibility is based on biological sex;
Rescind any policy allowing staff to facilitate a student's social transition without parental notice or consent;
Remove reliance on Grimm as legal authority;
Ensure compliance with Virginia Code § 22.1-23.3 and the Virginia Department of Education's Model Policies; and
Consult legal counsel regarding potential conflicts with recent case law.
The memo warns that school divisions that continue to rely on outdated guidance risk federal investigations, loss of Title IX funding, litigation, attorneys' fees, and court orders mandating immediate policy changes.
In a press release published the same day, representatives from FFLC and AFL said the following:
“Virginia school boards no longer have any legal excuse for policies that put politics ahead of the law and ignore students’ and parents' rights,” said Victoria Cobb, President of Founding Freedoms Law Center. “The Supreme Court has spoken clearly: ‘sex’ means biological sex, and parents, not school administrators, have the right to be informed about decisions affecting their own children. We are giving every school board in Virginia the chance to get this right before it becomes a matter for the courts.”
“This isn't a close legal question anymore,” said Josh Hetzler, Executive Director and Chief Counsel of Founding Freedoms Law Center. “B.P.J. and Mirabelli leave no room for districts to keep operating under Grimm. School boards that fail to update their policies are exposing their divisions, and their taxpayers, to real legal and financial risk. We are hopeful districts will act now, but we stand ready to represent parents and students whose rights are being violated in the meantime.”
“These recent Supreme Court decisions have made clear that schools cannot facilitate unconsented ‘gender transitions’ of children and that ‘sex’ as defined in Title IX cannot plausibly mean anything other than biological sex,” said Ian Prior, Senior Counsel at America First Legal. “School boards have the obligation to defend students, uphold parental rights, and follow the law. Our letter is designed to help Virginia school leaders understand their legal responsibilities, so they may better serve their communities. Should they choose a different path, America First Legal stands ready to take them to court.”
Founding Freedoms Law Center and America First Legal will continue to monitor Virginia school divisions' compliance and are prepared to represent parents and students whose rights have been violated by unlawful policies or practices.