First in the Nation, DOE Targets Five NOVA School Boards Over Trans Use of “Intimate Facilities”

Fourth Circuit  of Appeals Precedent vs. Federal Policy

On Friday, Aug. 29, 2025, the Fairfax School Board filed a lawsuit against the U.S. Department of Education and Secretary of Education Linda McMahon in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, challenging the department's decision to classify the school district as "high-risk" and potentially withhold federal funding.

The Arlington School Board filed a similar lawsuit on the same day against the U.S. Department of Education and Secretary Linda McMahon in the same court.

Students  and their families in a total of five Northern Virginia public school districts are therefore directly embroiled in the conflict that is a direct result of a clash between a federal appeals court and the U.S. Department of Education (DOE). The dispute centers on the DOE's threat to freeze federal funding if the schools do not rescind their transgender-inclusive policies regarding “intimate facilities”- bathroom and locker room use- which the department claims, in its official press release, violate Title IX. The impacted districts are Fairfax, Arlington, Loudoun, and Prince William counties, as well as the City of Alexandria. 

The Northern Virginia districts are the only public school systems in the nation currently affected. It is a power struggle between school districts, which are local government entities primarily responsible for setting their own policies, and the U.S. Department of Education (DOE), which alleges that the districts’ policies violate federal law.

The core argument of the school districts is that their policies are not only necessary for the well-being of their students but are also legally required. They cite legal precedent from the 4th U.S. Circuit Court of Appeals, which has appellate authority over all federal district courts in Virginia. In the 2020 case of Grimm v. Gloucester County School Board, the 4th U.S. Circuit Court of Appeals ruled that Title IX protects students based on their gender identity. The Supreme Court’s refusal to hear an appeal on the Grimm case effectively leaves the 4th Circuit’s ruling as the final word on the matter within its jurisdiction.

The DOE singled out the school districts for a "high-risk" designation—a specific form of enforcement—after its Office for Civil Rights (OCR) concluded an investigation into allegations of discrimination based on sex. The OCR alleges the policies, which pertain to "transgender-identifying" students, violate the sex-based protections of Title IX. “Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance,” states a July 25, 2025, press release by the DOE.

U.S. Acting Assistant Secretary for Civil Rights Craig Trainor said in the press release, “Although this type of behavior was tolerated by the previous administration, it’s time for Northern Virginia’s experiment with radical gender ideology and unlawful discrimination to come to an end. OCR’s investigation definitively shows that these five Virginia school districts have been trampling on the rights of students in the service of an extreme political ideology.”

The school districts refused, among other things, to sign a resolution agreement provided by the DOE that would have required them to change their policies. As a result, the DOE designated them “high-risk.” The fiscal implications of this designation make it difficult for schools to access millions of dollars in federal funding. Rather than receiving upfront payments, the districts cover the costs of programs—such as meals and special education—and wait for reimbursement from the DOE, which could deny claims, leaving the districts with a significant fiscal burden.

As Fairfax County Public Schools Superintendent Dr. Michelle Reid stated in an online message to staff and parents on Aug. 29, 2023, the DOE has “effectively frozen” access to as much as $167 million in funding, placing the schools in an “impossible position—whether to violate a federal court ruling...or risk this critical funding.” Fairfax County Public Schools is the ninth-largest school system in the U.S., with 199 schools, nearly 183,000 students, and over 25,000 full-time staff members. Its bus fleet is the largest in the country, with over 1,600 buses, according to FCPS.

Reviewing the Fairfax suit reveals several key legal arguments. The Fairfax School Board contends that the DOE’s decision is “arbitrary, capricious, and an abuse of discretion, and otherwise contrary to law,” a violation of the Administrative Procedure Act. The lawsuit also argues that the DOE’s threat to withhold crucial federal funds constitutes unlawful coercion and that the funding freeze itself causes “irreparable harm” to the districts and their most vulnerable students. In a statement authorizing the legal action, the school board said, “This lawsuit is an important step in our effort to protect the health and safety of all our students in alignment with state and federal law... We will not abide attempts to pit one group of students against another.”

In her online message, Reid wrote, “The work of providing a safe and supportive environment for our children matters deeply, and our focus remains squarely on their safety and success. In partnership with our families, we remain steadfast in our commitment to providing a world-class education where each and every student feels safe, included, and empowered to reach their unique potential.”