Judge blocks sanctions on boys who objected to female in locker room, rejects district's Hail Mary

A wealthy suburban D.C. school district belatedly justified its 10-day suspensions of two boys for complaining about a female who identifies as a boy recording them in their locker room, by claiming they had harassed the female student "over weeks and months."

That wasn't enough for U.S. District Judge Leonie Brinkema to reinstate suspensions by Virginia's Loudoun County Public Schools, which she paused Sept. 16 shortly after the anonymous Christian boys sued.

The President Clinton nominee granted the boys' preliminary injunction motion at a hearing Friday, shielding the 11th graders throughout litigation from punishment and a disciplinary notation on their record that could sink their college applications. 

One left LCPS after suing but "the threat of discipline remains" if he returns, their lawyers at America First Legal Foundation and Founding Freedoms Law Center wrote in their motion for preliminary injunction. (Brinkema asked last month why he should remain a plaintiff.)

Brinkema didn't give her reasoning in Friday's bench order, but AFL lawyer Ian Prior told the media she cited serious constitutional questions, the harm of removing their educational experience and the timing of the "permanent mark on their records." The judge will issue an order with her reasoning but didn't give herself a deadline.

"We're extremely pleased" suspensions are off the table throughout litigation, Prior said. They expect to succeed on all counts – likelihood of success is a factor supporting preliminary injunctions – but need to win only one, he stressed. 

It's arguing discrimination by religion, because a Muslim student who complained about the female wasn't punished, and sex, for LCPS telling the boys to find a different place to change but not the female student. LCPS also violated the boys' constitutionally protected free speech and misused its Title IX probe and findings "as a pretext for viewpoint discrimination."

Prior rebutted the district's argument that the binding 4th U.S. Circuit Court of Appeals precedent Grimm, which guarantees restroom access by gender identity in public schools, also applies to locker rooms. (northern Virginia school districts repeatedly invoke Grimm to defend their gender-identity policies regardless of location.)

LCPS told Just the News it "will prepare for the next steps" in litigation but didn't answer what Brinkema said about its first-time Oct. 6 claim that the female student recorded the boys only to "substantiate" the "relentless harassment" the female endured from them.

"We remain committed to fostering a safe, inclusive, and respectful learning environment for all students," LCPS said. "Harassment, discrimination, or bullying of any kind is not tolerated within our schools, and we will continue to uphold policies that protect the rights, dignity, and well-being of every student in our care."

Its opposition brief falsely described the female student as "male," which solely refers to sex, cannot be changed and is not synonymous with gender identity, and scolded the boys' lawyers for correct usage.

"Plaintiffs are well aware that this student identifies as male and that it is offensive to this student to be referred to as female," a footnote said. LCPS did not answer when asked why it conflated sex and gender identity, making a false statement of fact to the judge.

School district refuses to show judge recording it used to punish boys

"Plaintiffs mischaracterize the factual background which led to discipline being imposed upon them by LCPS," its opposition motion claims. 

The boys falsely claimed they spoke out against Policy 8040, specifically provisions that let students use restrooms and locker rooms based on their "consistently asserted gender identity," which allegedly prompted retaliation from LCPS. (The policy also punishes "intentionally and persistently" refusing to use others' preferred names and pronouns.) What they did was "sexually harass a student who was born female, but identifies as male," the brief says, again conflating sex and gender identity. 

This happened "for much of the school year" and "throughout the 2024-2025 academic school year," LCPS said variously, without getting more specific than "weeks and months," a phrase used four times in the filing.

The boys denied most of the allegations against them in spite of the "2 minute 22-second video/audio" by the female student, 16 seconds of which included video, "where students are depicted fully clothed and not in the process of changing clothing." LCPS is not providing the video to the court "at this time," citing federal student privacy law.

The district interviewed five staff members and 19 student witnesses about the incident involving the two punished boys, the female student and the Muslim boy, who was not punished because of "no evidence that he had engaged in harassment," not his religion, the brief says. 

The boys' lawsuit allegations were "concocted after-the-fact and are without merit," LCPS said, an argument that appeared to fail with Judge Brinkema.

The female student, whom the district identifies with male pronouns, filed a Title IX complaint alleging all three boys harassed the complainant "for using the boys’ locker room and referring to Complainant as 'it' and “girl-boy." LCPS said "multiple witnesses" including the boys' friends verified the alleged statements were made "in multiple classes."

The locker room recording captured their remarks, "not to a small circle of friends and not to protest School Board Policy 8040," which included "that’s a female bro get out of here" and several references to "a girl." The 11-second video shows the boy who left LCPS "yelling 'girl boy'" at the female student six times. 

If they wanted to "express their discomfort" with the female in the locker room or Policy 8040, "then repeating their questions at a loud volume over weeks and months typically outside the presence of any authority figure does not align with that description," the report by "three independent decisionmakers" found.

Founding Freedoms Law Center President Victoria Cobb told The Washington Post the boys had never talked to the female student before the latter filed a Title IX complaint and were only confused and discomforted by the complainant's presence in the locker room.

"It’s disappointing LCPS is advancing a false narrative by repeating allegations their own decision-makers determined to be unfounded and including an incident that wasn’t the basis of the punishment," Cobb said. FFLC did not respond to a query to clarify which allegations the decisionmakers determined unfounded or the unrelated incident.