State Del. Bob Marshall (R-Prince William County), who is running against Danica Roem, who is transgender, is among those who testified before the 5-3 vote. The American Civil Liberties Union of Virginia in a statement criticized school board members who also voted in favor of a provision that it said “appears to invite” the district’s superintendent” to “write implementing restrictions that restrict the right of transgender students and employees to choose to use the bathroom that confirms with their gender identity.”
“If the superintendent were to accept the board’s invitation and adopt any such restriction, the rule would violate the constitutional and statutory rights of Prince William students and employees who are transgender — rights the ACLU of Virginia continues to stand ready to defend,” it said.
The Albemarle, Arlington and Fairfax County School Districts specifically include sexual orientation and gender identity in their nondiscrimination policies. The cities of Alexandria, Virginia Beach, Charlottesville and Richmond have also implemented these measures in their schools.
Marshall and other opponents of these policies contend Virginia law — and specifically the Dillon Rule — prohibits the Prince William County School Board and other school boards from adding sexual orientation and gender identity to its nondiscrimination policy unless the General Assembly were to pass a statute allowing them to do so.
Virginia’s statewide nondiscrimination law does not include sexual orientation or gender identity.
Attorney General Mark Herring in a 2015 opinion said state law does allow school boards to add sexual orientation and gender identity to their nondiscrimination. A bill that Marshall introduced last year that would have prevented municipalities from enacting nondiscrimination measures with sexual orientation and gender identity did not make it out of the Virginia House of Delegates General Laws Committee.
The Liberty Counsel in late 2015 filed a lawsuit against Fairfax County’s LGBT-inclusive nondiscrimination policy on behalf of Traditional Values Coalition President Andrea Lafferty and an unnamed minor and his parents. The Virginia Supreme Court dismissed the case earlier this year.