The Virginia Supreme Court dismissed a challenge to the new transgender accommodation policy at one of America’s largest school districts, but the lead attorney for the plaintiffs vows the case will come back and his side will win when the decision focuses on the facts and the law.

Last week, the Virginia Supreme Court dismissed the case against Fairfax County Public Schools – the largest school district in Virginia and one of the ten largest in the United States – because it concluded the plaintiffs lacked standing before the court.

“They ruled on what’s called standing, whether there was an actual injury here.  What we have here is the school board passed the policies but they haven’t actually enforced them yet against any student to the point of disciplining them,” said Liberty Counsel Chairman Mathew Staver, who represented the unnnamed student, the student’s parents and another parent with kids in the Firfax Public Schools.

“Fear of discipline should be enough.  That’s what we argued,” said Staver.  “But the Virginia Supreme Court ultimately ruled that it’s not ready for a decision yet until someone actually has standing.  They have to have a real injury, rather than just fear that they’re going to have an injury, even though the fear is very real and very legitimate,” said Staver.

He says once the case comes back with standing, the court will be compelled to side with his clients.

“Whenever we get them to rule on the actual merits, that is whether the school board can add additional non-discrimination categories that are not included in the state law, then we win.  It’s an easy decision at that point in time,” said Staver.

Staver strongly disagrees that a student must be disciplined to have standing to challenge the policy, noting that a formal punishment, even if later reversed, could tarnish a student’s efforts to be accepted at a military academy or work in sensitive areas like national security and intelligence.

He also says students shouldn’t have to negotiate a policy that doesn’t meet state law.

“The school can’t do something that’s clearly illegal, which it’s done, hang it over the heads of the students and threaten that they will be disciplined and then simply void legal repercussions by not disciplining them, but threatening discipline.  The fact that they threaten discipline is enough to deter someone’s actions.  For the good students, they’re not going to want to walk into a buzzsaw  of discipline,” said Staver.

Staver is confident of winning on the merits because of the Dillon Rule, which states no local non-discrimination policy can add protected classes beyond what has been added under state law.  Virginia has not added transgender or sexual orientation to its non-discrimination policy.

He says the looming fear of punishment based on an illegal policy is already condemned in legal precedent.

“If you have a violation of free speech, you can file for that action.  But if you’re threatened in your free speech, you don’t have to go through discipline or threat or arrest, if the law or the rule or the policy or the ordinance actually creates a chilling effect so that you refrain from speaking, because you are fearful that you will be disciplined or charged or arrested, that’s enough,” said Staver.

Nonetheless, Staver says he is already gathering evidence that will argue his clients has suffered injury because of the policy.  In fact, Staver says evidence came in during the lead-up to oral arguments before the court that would have greatly strengthened his case, but he points out evidence discovered after filing the case is inadmissible.

Staver is unsure whether other left-leaning school board in Virginia will take the court’s dismissal as a green light to enact their own policies.  He strongly urges districts not to follow the lead of Fairfax County or else they will end up paying massive court fees when they lose on the merits.

On the other hand, Staver says the more school districts pursue the transgender accommodation policy, the easier it will be to gather evidence to being the case back to the Virginia Supreme Court.

Another advantage for Staver, is the Trump administration’s repeal of the Obama Justice Department’s directive that all public schools adopt transgender accommodation policies.

“It definitely strengthens our case on the merits because Fairfax County or any other county could say, ‘We’re just doing it because we’re compelled to do so by this federal directive.  They can’t do that anymore.  That particular argument , that crutch has been taken away from them,” said Staver.