By Dan Egitto in ARLNow

Virginia’s attorney general and 20 of his counterparts in other states are weighing in on a lawsuit over Arlington Public Schools’ policies around transgender students.

Outgoing Attorney General Jason Miyares and other Republican officials jointly filed a brief last Tuesday in the U.S. Court of Appeals for the Fourth Circuit, arguing that the U.S. Department of Education was right to label APS and Fairfax County Public Schools as “high risk” and place restrictions on their funding.

The officials disputed the school systems’ interpretations of a related federal case, Grimm v. Gloucester County School Board, in which a transgender high schooler won permission to use boys’ bathrooms. While the Arlington and Fairfax County school boards argue that this supports allowing trans students to use facilities that match their gender identity, the attorneys general alleged that local officials’ current approach violates federal law.

“The school divisions’ effort to twist Grimm far beyond its actual holding is unsupported by law and profoundly irresponsible,” Miyares said in a press release. “The district court made the proper call, and the Fourth Circuit should uphold it. Fairfax and Arlington are not exempt from following the law, and their reckless choices make clear that protecting children was never their priority.”

A judge in the U.S. District Court for the Eastern District of Virginia threw out lawsuits by the Arlington School Board and Fairfax County School Board in September. Ruling that this was the wrong venue for the case, Judge Rossie D. Alston Jr. denied the school boards’ attempt to block a threatened freeze on federal funding for their respective school districts.

That ruling focused mostly on the proper jurisdiction for the case — which Alston said is the Court of Federal Claims — and the school boards’ attempt to block the Education Department’s actions, rather than the merits of specific policies on transgender students.

Both school boards, whose federal funding is currently on “reimbursement status,” have since appealed the decision to the Court of Appeals. APS receives $23 million from the federal government, accounting for about 3% of the school system’s $845 million budget.

U.S. Secretary of Education Linda McMahon has pledged to give “additional scrutiny” to funding for Northern Virginia schools because they “must now prove they are using every single federal dollar for a legal purpose.”

“In designating the School Divisions as ‘high risk,’ the Department of Education rightly recognized that Grimm does not justify the School Divisions’ radical policies,” attorneys wrote in the most recent filing. “The district court correctly dismissed the School Divisions’ claims, and this Court should affirm the district court’s dismissal.”

Meanwhile, the Arlington School Board has argued that, under federal precedent, Title IX and the Equal Protection Clause of the U.S. Constitution, local school boards are compelled to let transgender students access bathrooms and locker rooms that correspond with their gender identity.

“[The Department of Education’s] action … is arbitrary, capricious, an abuse of discretion, and otherwise contrary to law,” the School Board wrote. “Accordingly, this Court must hold unlawful and set aside Defendants’ action.”

This is Miyares’ second time weighing in on this case. He filed another brief in support of the Education Department in September.

Pointing to the arrest of Richard Cox, a registered sex offender accused of claiming to be transgender in order to access multiple girls’ locker rooms in Arlington and loiter there while naked, Miyares has argued that current policies in Arlington and Fairfax threaten students’ safety and privacy.

Officials in the following states joined Miyares in the most recent filing: Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming.

On the other side, Equality Virginia, the NAACP, Northern Virginia Families and the Arlington Gender Identity Alliance have all filed briefs in favor of the Arlington and Fairfax County school boards.