Federal Law Does Not Provide Parents Or Students The Right To Demand Transgender Students Use The Bathroom That Matches The Students’ Sex Assigned At Birth

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Feb 28, 2020

A student at an Oregon high school who had been born and who remained biologically female publicly identified as a male, and he asked school officials to allow him to use the boys’ bathroom and locker room. The School District responded by creating and implementing a “Student Safety Plan” for the transgender boy (Student A) and any other transgender student who might make a similar request in the future, in order to ensure that transgender persons like Student A could safely participate in school activities.

The Plan permitted Student A to use the boys’ locker room and bathroom facilities with his peers. The Student Safety Plan required staff to receive training regarding Title IX and teach about anti-bullying and harassment and implemented other measures to ensure student safety. Student A began using the boys’ locker room and changing clothes in front of other male students. This caused other boys “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress.”

When parents became aware of the Student Safety Plan, many opposed it publicly. Some parents were concerned about the prospect of their children using locker rooms or bathrooms together with a student who was assigned the opposite biological sex at birth, and others were concerned the plan interfered with their moral or religious teaching. A group of parents sued the District, the Oregon Department of Education, the Governor of Oregon, and various federal officials and agencies and argued the Student Safety Plan violated the Constitution and numerous other federal and state laws. The Parents wanted the trial court to stop the District from implementing the Student Safety Plan and issue a mandate that students may only use the bathrooms, locker rooms, and showers that matched their biological sex assigned at birth.

The District and two other defendants requested the trial court dismiss the lawsuit against them, which the trial court granted, with prejudice, for reasons based on various federal laws. The Parents appealed. On appeal, the Parents challenged the trial court’s dismissal of their claims that the District violated: (1) the Fourteenth Amendment right to privacy; (2) Title IX; (3) the Fourteenth Amendment right to direct the education and upbringing of one’s children; and (4) the First Amendment’s Free Exercise Clause.

Specifically, the Parents argued the Fourteenth Amendment provided a “fundamental right to bodily privacy” that included “a right to privacy of one’s fully or partially unclothed body and the right to be free from State-compelled risk of intimate exposure of oneself to the opposite sex.” Because the District’s Student Safety Plan required students to risk being intimately exposed to students of the opposite biological sex without any compelling justification, the Parents argued the District violated their fundamental Fourteenth Amendment rights. The trial court concluded the Fourteenth Amendment did not provide high school students with constitutional privacy right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs. The Parents failed to show how the Fourteenth Amendment protected against the District’s implementation of the Student Safety Plan. Accordingly, the Court of Appeals affirmed the trial court’s dismissal with prejudice of the Parents’ claim for violation of privacy under the Fourteenth Amendment’s Due Process Clause.

Next, the Parents argued the District’s policy violated Title IX by turning locker rooms, showers, and multi-user restrooms into sexually harassing environments and by forcing students to forgo the use of such facilities as the solution to harassment. The trial court concluded the alleged harassment was not discrimination based on sex within the meaning of Title IX, because the District’s plan did not target any student because of their sex. Rather, the Student Safety Plan applied to all students regardless of their sex, and therefore the Parents did not demonstrate the District treated any students differently. Additionally, the District’s Student Safety Plan did not create a severe, pervasive, and objectively offensive environment.

The Parents also argued Title IX required facilities to be segregated based on “biological” sex rather than “gender identity.” However, the Court of Appeals held that just because Title IX authorized sex-segregated facilities did not mean they are required, let alone they must be segregated based only on biological sex and cannot accommodate gender identity. Furthermore, Title IX did not provide Parents a right to sue the District for not providing facilities segregated by “biological sex,” and it did not create distinct “bodily privacy rights.” Overall, Parents failed to establish the Student Safety Plan created a severe, pervasive, and offensive harassment or any District action motivated by gender. Parents did not allege that transgender students made inappropriate comments, threats, deliberately flaunted nudity, or physically touched other students. Rather, the Parents stated students allegedly felt harassed by the mere presence of transgender students in locker and bathroom facilities, which the Court of Appeals held is not enough to sustain a Title IX violation. Accordingly, so the Court of Appeals affirmed the trial court’s dismissal of the Title IX claim.

Parents then alleged the Fourteenth Amendment gave them the fundamental rights to direct the care, education, and upbringing of their children, which also encompassed the following rights: (1) “the power to direct the education and upbringing of their children;” (2) the right to “instill moral standards and values in their children;” (3) the “right to determine whether and when their children will have to risk being exposed to opposite sex nudity at school;” and (4) the “right to determine whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex” in “intimate, vulnerable settings like restrooms, locker rooms, and showers.” Parents argued the Student Safety Plan violated these rights.

The Court of Appeals identified authority that Parents lack a fundamental right to direct the District’s bathroom and locker room policy and Parents failed to cite any Supreme Court cases that stated Parents had the right to direct the curriculum, administration, or policies of public schools as the Parents attempted to do in this matter. The Court of Appeals affirmed the trial court’s dismissal with prejudice of this claim.

Lastly, Parents argued the Student Safety Plan violated their First Amendment rights to exercise their religion freely because the Student Safety Plan forced them to be exposed to an environment in school bathrooms and locker facilities that conflicted with and prevented them from fully practicing their religious beliefs. Specifically, the Plan prevented students from practicing the modesty their faith required of them.

First, the Court of Appeals held the Student Safety Plan was not adopted with the specific purpose of infringing on the Parents’ religious practices or suppressing religion. Accordingly, the trial court correctly concluded that the Student Safety Plan is neutral and generally applicable with respect to religion. Second, the Student Safety Plan affected all students and staff—it did not place demands on exclusively religious persons or conduct. The Court of Appeals found the Student Safety Plan was rationally related to the legitimate purpose of protecting student safety and well-being and eliminating discrimination based on sex and transgender status. Thus, the Plan did not impermissibly burden the Parents’ First Amendment free exercise rights.

In sum, Parents failed to state any claim upon which a court could grant relief. The Court of Appeals affirmed the judgment of the trial court.

Parents for Privacy v. Barr (2020) __ F.3d __ [2020 WL 701730].