Virginia schools that let males in girls' restrooms imperiled by appeals court, Youngkin order

The walls are closing in on a wealthy suburban D.C. school district that has become the national face of resistance to President Trump's executive orders against gender identity, twice denied a reprieve in court and facing a parallel threat from Virginia GOP Gov. Glenn Youngkin.

The 4th U.S. Circuit Court of Appeals rejected an emergency injunction sought by Fairfax County Public Schools to stop the U.S. Department of Education from cutting off federal funding for letting students use restrooms and locker rooms and compete in sports on the basis of gender identity rather than sex. 

Youngkin followed Trump's lead the next day by directing the state Board of Health to draw up regulations to prevent males from competing in "organized female-only athletic teams and competitions in Virginia" and from using "designated female spaces where females are likely to be in a state of undress," whether minors or adults.

The feds cut off FCPS from the Magnet School Assistance Program a week earlier for the same policies, and a new Title IX complaint alleges FCPS told girls they had no recourse against a male student with "facial hair," wearing skintight pants that "clearly outlined his genitalia," leering at them in their locker room as they changed clothes.

If that weren't enough, the feds took "enforcement action" against FCPS on Monday in response to a report in August that a high school social worker scheduled an abortion for a student, paid for it, "swore the girl to secrecy" and pressured another girl to get an abortion at the same clinic. That would violate parental rights in the Protection of Pupil Rights Amendment.

A week earlier, Sen. Bill Cassidy, R-La., said his health committee was investigating, and two months earlier Youngkin instructed the state police to investigate, including whether taxpayer money was used. Superintendent Michelle Reid said she was also investigating.

The scandals could push GOP gubernatorial nominee Winsome Earle-Sears past Democratic frontrunner Abigail Spanberger with a month until Virginia's off-year election.

Earle-Sears has closed the gap while hammering Spanberger for supporting gender identity policies in schools, including Fairfax County policies that also enabled a male registered sex offender to repeatedly use girls' public facilities, cited in Youngkin's executive order. 

Recent polling starkly disagrees on Spanberger's lead, however, with A2 Insights finding just 3 percentage points and The Washington Post-George Mason University poll, 12 points. Cardinal News founding editor Dwight Yancey cited a whiter and more conservative sample in A2's poll than Emerson College's for The Hill, which gave Spanberger a 10-point lead.

'An embarrassment and a tragedy' that Youngkin has to intervene

The 4th Circuit panel has yet to explain Wednesday's denial of the emergency injunction sought by FCPS, which filed a motion to expedite the appeal Thursday, except to note the concurrence of the other two judges with Chief Judge Albert Diaz, nominated by President Obama.

U.S. District Judge Rossie Alston denied its motion Sept. 5 on the grounds that Alston lacks subject-matter jurisdiction "to order the payment of money" under both 4th Circuit and Supreme Court precedent and must defer to the Court of Federal Claims.

FCPS blasted Alston in its appeal for "relying on unclear and inapposite emergency-docket guidance from a fractured Supreme Court," when "Congress expressly made Title IX funding challenges subject to judicial review under the Administrative Procedure Act" and its "waiver of sovereign immunity does not extend to money damages."

The department responded that FCPS can't show the required "irreparable harm" for an injunction because it can still seek reimbursement from the feds under its "high-risk" designation, for not following the Trump administration's view of Title IX, and that even if Alston has jurisdiction, "Fairfax did not exhaust its administrative remedies."

Youngkin's executive order to the Board of Health tasks it with promulgating regulations "to ensure the health, safety, privacy, dignity, and respect of all individuals, especially women and girls, within legally permissible sex separated and sex specific spaces and activities, overriding irresponsible, unsafe, and unhealthy local policies."

It notes the feds have applied high-risk status to the five northern Virginia school districts that refused to comply with Trump's Title IX view, that Loudoun County Public Schools punished boys who complained about a girl who identifies as a boy recording them in their locker room, and the new Title IX complaint about a male leering at girls changing their clothes.

"Additionally, more than a dozen witnesses have testified in a case involving a male Tier III sex offender who exposed and sexually gratified himself in front of female children in female locker rooms within schools and fitness centers in Northern Virginia," the order says.

"It is an embarrassment and a tragedy that certain individuals continue to turn a blind eye to these clear violations of the law and of the health, safety, privacy, dignity, and respect of these students. This must stop," the order also says.

"We are aware of the governor’s latest executive directive and will review details once provided directly to school divisions from the Virginia Board of Health," FCPS told Just the News in an email. 

"FCPS policies and regulations continue to stay aligned with Virginia law and the rulings of the federal Court of Appeals for the Fourth Circuit," the email continued. "We continue to partner with all families to provide a safe, supportive, and inclusive school environment for all students and staff members, including our transgender and gender-expansive community."

Youngkin's order notes the latest details from lifetime offender Richard Kenneth Cox's criminal trial in Arlington County, which neighbors Fairfax County, for allegedly exposing himself to women and girls in their locker rooms in a rec center and two public schools.

Cox had children's swim schedules for Fairfax County recreation centers on his phone along with child pornography, an Arlington County detective testified, according to WJLA.

Fairfax County police chief Kevin Davis cited Cox's identity as a woman this summer to justify not charging Cox for allegedly exposing himself to women and girls at three rec centers.

Cox's designation prohibits him getting within 100 feet of a "child day program," yet he also wasn't charged after video surfaced of Cox walking out of an FCPS water park for kids with disabilities and toward a playground, WJLA said. 

Neither Davis nor the public information office for Fairfax County police responded to Just the News queries about the children's swim schedules allegedly found on Cox's phone.

To avoid having to answer questions about Cox, Fairfax County board chair Jeff McKay fled from WJLA reporter Nick Minnock's questions about the policies before Cox's trial. Minnock said he followed McKay for three minutes before McKay finally got away by ducking into a men's restroom.