This past week the Supreme Court of Virginia heard a rousing and highly technical case involving a transgender policy recently adopted by Fairfax County Public Schools. (It’s amazing just how technical the whole issue of male vs. female anatomy has become in political and legal circles, since most of us learned this stuff in kindergarten.)

Only, the Court never got to the merits of the case to decide whether Fairfax County has the legal authority to alter anatomical reality and render boys and girls indistinguishable in their student Code of Conduct. The hearing was limited to the issue of “standing”, or the ability of a Fairfax County student and his parents to even bring the lawsuit in the first place. So not exactly primetime territory for the Perry Mason’s of the world, but still fascinating stuff for legal and policy wonks, and very important stuff for average ordinary parents and students when it comes to protecting their rights. Yet even for us wonks in the room, to hear the judges and lawyers go round and round gave the impression that this thing is a real legal quagmire.

The issues revolved around the legal effect of what’s known in Virginia as the “Dillon’s Rule”. It’s a doctrine of statutory construction which basically says that local governing bodies (including school boards) have no authority to do anything except those things which have been expressly granted to them either in their charter, or by statutory laws in the Code of Virginia. Virginia courts have always applied the rule very strictly, so anything that falls outside of the expressed power just a little bit will typically be invalidated.

The student and parents maintain (as do I) that the school board’s addition of the concepts of “sexual orientation” and “gender identity” in their student code of conduct is outside the bounds of what the General Assembly has permitted them to do. And therefore, in violating a state statute (not to mention a constitutional right), the Dillon’s Rule provides for the right to sue when a person has been harmed by that overreach. The arguments centered on this doctrine, its case-law, and the particular facts and claims in this case. It was clear that both sides felt that this situation was unique in the context of legal precedent.      

As I watched the oral arguments, all of the rigmarole over nuanced and seemingly conflicting legal doctrines led me to ask one practical question, which I hope will cross the Justices’ minds, too: If a student has no legal ability to challenge an unlawful school policy that chills his free speech and threatens to punish him at any moment, and if parents likewise have no ability to sue a school to prevent their child from being harmed by an illegal and indefensible policy, how can justice ever be served in such scenarios? How can their legitimate grievances be addressed? Can schools simply take advantage of this apparent “loop hole” to create any policy they want to? The attorney for Fairfax County Schools seemed to concede as much. Clearly, the implications of the Court’s decision are significant.

As for my judicial punditry, my bet’s on a 4-3 split in favor of sanity and common sense. Then again, as the underlying issue in this case reminds us, common sense ain’t so common anymore. But it’s still alive and kicking, thanks to some courageous students and parents in Fairfax County unwilling to accept lawlessness in their schools.