Fairfax and Arlington are fighting to keep gender-identity rules in girls’ facilities

Fairfax and Arlington should restore sex-based privacy in school bathrooms, locker rooms and overnight rooms, and they should do it now.

The Washington Times post called the ruling a “victory,” saying: “Appeals court delivers victory to Fairfax and Arlington counties’ school systems, rules that they can turn to the regular federal courts to defend their transgender student policies against the Education Dept.”¹ The Fourth Circuit’s Oct. 15, 2026, opinion quotes Fairfax’s policy: “[g]ender-expansive and transgender students” must be allowed to use “a locker room or restroom consistent with the student’s gender identity.”² On overnight school trips, students may be assigned to rooms consistent with their gender identity, and Arlington’s policy likewise requires that “all students” be given access to bathrooms and locker rooms “that correspond to a student’s gender identity.”

Both boards defended these rules by arguing that Title IX required them, as the Fourth Circuit read it in Grimm v. Gloucester County School Board². Sex, not a student’s asserted identity, should decide who shares those rooms.

The panel reopened the case, not the merits

The only question the panel considered was whether the district court lacked subject matter jurisdiction to adjudicate every claim in the school districts’ complaints because of the Tucker Act².

The court vacated the dismissal and sent both cases back for further proceedings. Judge Allison Jones Rushing wrote the majority opinion, in which Chief Judge Diaz concurred, and Judge Richardson wrote a dissent².

The Office for Civil Rights had already found both districts in violation of Title IX and its implementing regulations². A jurisdictional ruling does not touch that finding, and the policies still stand as the boards wrote them.

The districts have not lost federal funds

Fairfax and Arlington have not lost a dollar. The Education Department did designate both districts high-risk, after it began proceedings to suspend or terminate federal assistance².

That designation put their grants on reimbursement: the reimbursement condition requires each district to document that an expenditure can be charged to the grant and has already been paid for with non-federal funds. The boards sued and asked a court to declare that their policies do not violate Title IX².

Reimbursement is paperwork, and the locker-room rule is not.

Girls’ privacy is the dispute’s real stake

Arlington Public Schools said its focus was “providing a safe, welcoming and supportive learning environment where all students feel valued, respected and supported in their learning.”³ The Office for Civil Rights found the policies permit access to intimate facilities that correspond with a gender identity, which requires students to use them in the presence of members of the opposite sex².

The department’s proposed resolution required both districts to rescind their facility-access policies and to define “male” and “female” for their schools². Under the boards’ rules, sex is no longer the boundary for a shared locker room, and the girls who use those rooms did not write the rule.

The districts should restore sex-based privacy

The cases return to the Eastern District of Virginia, where the school districts filed their complaints under the Administrative Procedure Act².

Will Fairfax and Arlington keep sex as the rule for shared bathrooms, locker rooms and overnight rooms, yes or no? Parents should press their school boards for that answer in writing before the next round of litigation begins. Girls should not have to wait for another court to have their privacy respected.

Sources

1. @WashTimes on X, 2026-10-15: Appeals court delivers victory to Fairfax and Arlington counties’ school systems, rules that they can turn to the regular federal courts to defend their transgender student policies against the Education Dept. https://buff.ly/uMnTD4y, 2026-10-15
2. UNITED STATES COURT OF APPEALS
3. Court revives suits from Virginia schools over transgender student policies