The Virginia Supreme Court has dismissed a case brought by Liberty Counsel. Taxpayers are really the losers as this has gone on for nearly two years. Knowing Liberty Counsel, they will continue to appeal the matter to the U.S. Supreme Court. It is easy when you don’t have a client containing the legal bills.
This all began in November of 2014 when the Fairfax County Virginia School Board had the temerity to add sexual orientation to its nondiscrimination policy. In May of 2015 the school board added gender identity (oh my!). Mat Staver, leader of the hate group suffered a brain explosion and sued the school board. The plaintiffs were a student at the school and Andrea Lafferty, a Virginia resident who is with Traditional Values Coalition (another anti-LGBT hate group).
The district court dismissed this case in February, 2016. The reason that the case was dismissed was because the plaintiffs lacked standing. They could not demonstrate how they were harmed by the actions of the school board. SBF readers know that I have asserted that overturning Obergefell faces a similar hurdle. In a new case a plaintiff with have to establish Article III standing and demonstrate how they have been harmed by same-sex marriage. Therefore, I am including longer citations to further explain the issue of standing.
In this case, according to the Court:
The complaint alleges Jack Doe is: (1) “distressed” because he “has no idea what words
or conduct might be interpreted as discriminating on the basis of ‘gender identity,’ and therefore
does not know what speech or conduct might subject him to discipline”; (2) “distressed” because
“he understands that the decision will mean that the restrooms, locker rooms and other intimate
spaces . . . will now be open to students who might have the physical features of one sex but are
permitted to use the bathroom of the opposite sex which the student ‘identifies’ as, whatever that means”; (3) unsure of whether he can question someone appearing to be a girl in his locker room
or bathroom; (4) “nervous about having to think about every statement or action and its potential
sexual connotations,” which causes him “significant distress to the point that it adversely affects
his ability to participate in and benefit from the educational program”; (5) “terrified of the
thought of having to share intimate spaces with students who have the physical features of a girl,
seeing such conduct as an invasion of privacy”; (6) unable to “regard school as a safe place
where he can learn . . . without fear of harassment, being charged with harassment, and having
his speech and conduct chilled by the fear of reprisals or of discipline for unknowingly violating
the ambiguous code of conduct”; and (7) inhibited in his “ability to fully and freely participate in
and benefit from the school’s educational program.”
The District Court wasn’t buying any of that gibberish and, in point of fact, standing is never based upon potential harm. A litigant must prove an actual injury.
The court did “not find that his disappointment with or anxiety or confusion or distress over the
action of the school board constitutes a case or controversy or an adjudication of a right that
gives him access to the declaratory judgment powers and the injunctive relief powers that this
The state’s highest court has now reached the same conclusion:
First, the complaint fails to allege actual or potential injury in fact based on “present
rather than future or speculative facts.” Id. The complaint alleges only that Jack Doe fears that
the policy might involve the use of his bathroom or locker room by a transgender student. Jack’s
sharing of a bathroom or locker room by a transgender student is, however, a purely speculative
fact. It is not clear what, if any, bathroom policies are being implemented, or even that Jack
attends school with a single transgender student. Similarly, Jack alleges that he is “distressed”
about how his words might be misinterpreted and thinks cautiously about his speech. Yet Jack
does not allege any present facts that would place him in violation of the policy, rendering any
injury purely speculative. …
Liberty Counsel provides the complete opinion if you wish to read more of it. It concludes:
As the parties failed to allege an actual controversy sufficient to bring a declaratory
judgment action, they likewise may not recover the injunctive relief requested therein. For the
reasons stated, we will affirm the judgment of the circuit court.
Eventually the courts are going to have to start sanctioning these lawyers. This action was frivolous at the outset.