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WASHINGTON, D.C. – America First Legal (AFL) has filed a critical brief in the case of Fairfax County School Board v. United States Department of Education, pushing back on Fairfax County’s newest effort to save its bathroom policies that flout federal law and violate the rights of students.
Late last week, the Fairfax County School Board sued the Department of Education over the Department’s decision to freeze federal funding, following its finding that the bathroom policies of five northern Virginia school districts—including Fairfax—violated Title IX. In its brief, AFL addressed how these radical policies impact real students and how the School Board’s arguments are an untenable reading of federal law.
While Fairfax and other school districts have insisted for years that the Fourth Circuit’s Grimm v. Gloucester decision requires policies that allow students to use the bathroom and locker rooms of their chosen “gender identity,” AFL’s brief explains precisely why that is incorrect.
First—assuming that it was even correct to begin with—Grimm only ever applied to students who consistently, insistently, and persistently identified as transgender. The student in Grimm had a medical diagnosis, parental involvement, and even medical procedures performed, all of which were important factors in the Grimm court’s decision. But in Fairfax, none of those requirements apply. Students do not need any documentation, parental notice, or support, or any other support to use the facilities of the opposite sex.
Second, Fairfax’s policies explicitly allow students to use the bathroom or locker room of their “gender identity,” a decision the Grimm court specifically and explicitly said it was not reaching. Therefore, all arguments that Grimm requires such an expansive policy are baseless.
The bathroom policies at issue here are also the subject of a separate case AFL is litigating in Fairfax County. Doe v. Fairfax County School Board centers on a female Fairfax County student who was told she would have to use a private restroom if she was uncomfortable with a male using the girls’ restroom, per the school’s bathroom policy favoring “transgender and gender-expansive” students. The trial in this case is scheduled to begin on September 29, 2025.
“When the Department of Education says your policy violates federal law, the answer is to fix it—not sue the government to protect it. Fairfax County has again chosen leftist political ideology over its students’ well-being. Students shouldn’t suffer for cheap political points. AFL is stepping in to help protect these students and stop Fairfax County’s harmful, ideologically driven policy,” said Nick Barry, Senior Counsel at America First Legal.
Read the amicus brief here.
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