Five Northern Virginia school districts plan to keep allowing students to use restrooms and locker rooms based on their gender identity, despite an ultimatum from the Trump administration.
In separate replies, the five districts refused to sign the proposed resolution agreement from the Department of Education, saying it would violate legal precedent set by the 4th Circuit Court of Appeals in its 2020 decision in Grimm v. Gloucester County School Board.
Instead, district officials asked the department to wait for the Supreme Court’s ruling in West Virginia v. B.P.J., a case scheduled for oral argument in the 2025-26 term that centers on whether Title IX, the federal law that prohibits sex-based discrimination in any education program or activity that receives federal funding, extends to gender identity.
“Until the Supreme Court issues its ruling in B.P.J., Grimm remains binding law in the Fourth Circuit,” said the Friday letter from an attorney for the Arlington Public Schools. “Should APS agree to the Resolution Agreement’s terms, APS would be in jeopardy of violating federal law.”
The decision to defy the administration could be costly for the five districts: Arlington, Alexandria City Public Schools, Fairfax County Public Schools, Loudoun County Public Schools, and Prince William County Public Schools.
After the department’s Office for Civil Rights found the districts in violation of Title IX, they were given 10 days to comply with the proposed agreement or “risk imminent enforcement action including referral to the U.S. Department of Justice.”
The deadline was Friday.
The agreement calls for the districts to rescind policies allowing student access to “intimate facilities” based on gender identity, and adopt biologically based definitions of “male” and “female” in programs related to Title IX.
If they refuse, the districts could face penalties that include the loss of their federal funding. In Fairfax County, that figure is $160 million annually.
In Prince William County, most of its federal grants go toward programs for children with disabilities; remedial education for low-income students, and Head Start preschool, according to a letter from the district’s attorneys.
“The Department has placed PWCS in a catch-22: agree to key terms that expose the district to potential liability or risk federal funding,” the letter said. “Federal grants are an important source of funding in PWCS.”
Loudoun County school officials said the district was “unable to agree to the proposed terms” for several reasons, including its position that “inclusive policies contribute to safer, more supportive learning environments for all.”
“This decision is rooted in our legal obligations, our values, and our belief that every student should feel safe, respected, and supported in our schools,” Loudoun County School Board President Melinda Mansfield and Superintendent Aaron Spence said Friday in a statement.
Fairfax County Superintendent Michelle Reid said that the districts had requested a 90-day extension to “engage in thoughtful discourse,” but that it was denied.
“Today, FCPS submitted a follow-up request to OCR outlining why our policies and regulations are consistent with controlling state and federal law,” she said in a statement. “We have asked OCR to stop further action while this legal issue is clarified by the courts — the branch of government charged under our U.S. Constitution to interpret and state what the law is.”
Madi Biedermann, DOE deputy assistant secretary for communications, said the administration will seek to suspend or terminate federal funding to the districts.
“The U.S. Department of Education generously granted an extension for five Northern Virginia School Districts to come into compliance with Title IX and follow federal law — unfortunately, the additional time did not result in a fruitful outcome,” she said in an email to The Washington Times.
“The Agency will commence Administrative proceedings to effect the suspension or termination of federal financial assistance to these divisions,” she said. “The Virginia districts will have to defend their embrace of radical gender ideology over ensuring the safety of their students.”
In its 2020 ruling, the 4th Circuit upheld a lower-court decision that found the Gloucester school district violated Title IX and the Equal Protection Clause by excluding student Gavin Grimm, a biological female, from the boys’ restrooms.
The Supreme Court denied the board’s petition in 2021 to review the lower court ruling. The district ultimately paid the student $1.3 million in attorneys’ fees and costs.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.