EDUCATION
Ninth Circuit Tosses Another Cisgender Bathroom Suit
Oregon district judge upheld in fi nding no fault in policy giving trans students fair access
BY ARTHUR S. LEONARD
The San Francisco-based
Ninth Circuit Court of
Appeals has affi rmed a
district court ruling that
a school district in Dallas, Oregon,
did not violate the legal rights of
parents and students who objected
to its policy of allowing transgender
students to use bathroom and
locker room facilities consistent
with their gender identity.
The February 12 decision upholding
District Judge Marco A.
Hernandez’s ruling came from a
unanimous three-judge panel comprised
of A. Wallace Tashima, who
was appointed by Bill Clinton and
wrote the court’s opinion, Susan P.
Graber, also appointed by Clinton,
and John B. Owens, appointed by
Barack Obama.
The school district adopted its
policy in response to a request
from a transgender student, cited
in the court’s opinion as Student
A, who was identifi ed as female at
birth but announced in September
2015 that he identifi es as a boy and
wished to use the boys’ bathroom
and locker room. This request
came in advance of the Obama administration
sending out its letter
to school districts nationwide advising
that trans students have a
legal right to such access, a directive
the Trump administration disavowed
shortly after taking offi ce.
The district adopted a policy it
called the “Student Safety Plan”
allowing trans students to “use
any of the bathrooms in the building
to which he identifi es sexually.”
School staff were to be trained regarding
Title IX, the federal statute
requiring schools receiving federal
funding to afford equal educational
opportunity for students regardless
of their sex. The plan also provided
that the gym teacher would be the
fi rst to enter the locker room and
be present at all times when students
were using it, and that Student
A’s locker would be in direct
line of sight of the coach’s offi ce, so
the coach would see if anybody interfered
with him.
The plaintiffs in this lawsuit
Cisgender students and their parents opposed to a trans-inclusive school facilities policy in an Oregon
district fell fl at on their faces at the Ninth Circuit Court of Appeals.
claimed that Student A’s presence
in the locker room caused cisgender
boys “embarrassment, humiliation,
anxiety, intimidation, fear,
apprehension, and stress,” and that
the privacy stalls in the bathrooms
were insuffi cient because they
had gaps through which “partially
unclothed bodies” could “inadvertently”
be seen. A single-user bathroom,
they also alleged, was “often
inconvenient or considered inferior
because it lacked a shower.”
In other words, the plaintiffs argued
that the trans student should
have to use the inconvenient and
inferior facility rather than them,
due to their “stress” and “fear”
around the possibility of encountering
Student A while using the
locker room and a public bathroom.
According to Judge Tashima’s
opinion, the parents who joined
the suit as plaintiffs charged that
the school policy interfered with
their “preferred moral and/ or religious
teaching of their children
concerning modesty and nudity.”
Meanwhile, “several cisgender girls
suffered from stress and anxiety as
a result of their fear that a transgender
girl student who remains
biologically male would be allowed
to use the girls’ locker room and
bathroom” — though it’s unclear if
the school has a any trans girls.
The lawsuit alleged violations
of Title IX, the federal Religious
Freedom Restoration Act, the First
and 14th Amendments of the Constitution,
OREGON FEDERAL DISTRICT COURT
and the Oregon public
accommodations law. The federal
constitutional violations, the suit
asserted, included denying cisgender
students of their privacy rights
and their parents of their liberty
interest in raising their children.
Tashima batted down the privacy
argument noting that the
school policy provides “alternative
options and privacy protections”
to students who did not wish to be
exposed to Student A in the shared
facilities — even if the alternative
options “admittedly appear inferior
and less convenient.”
Nor does the policy create a
“hostile environment” for cisgender
students, in violation of Title
IX, with Judge Hernandez having
found that it does not discriminate
against any student because of his
or her sex, since it applies across
the board to all students. Hernandez
also noted that decisions by
other courts had all agreed that
“the presence of transgender people
in an intimate setting does not,
by itself, create a sexually harassing
environment that is severe or
pervasive.”
On the question of the parents’
rights, the district court had pointed
out that the Supreme Court has
rejected claims by parents that
they were entitled to control the
school curriculum or policies in order
to “protect” their children from
infl uences feared by the parents.
The court also rejected the parents’
free exercise of religion claim
that they have a right to shield
their children from exposure to
views that the parents consider immoral
on religious grounds. Tashima
affi rmed Hernandez’s reliance
on Supreme Court precedents that
free exercise claims do not provide
any exemption from a religiously
neutral and generally applicable
policy that does not specifi cally
target religious beliefs.
The appellate panel agreed that
the district’s policy was “carefullycrafted…
to avoid discrimination
and ensure the safety and well-being
of transgender students,” and
that it did not violate Title IX or any
constitutional rights of the parents
or the cisgender students. Hernandez’s
decision to dismiss the suit
was upheld.
This ruling is consistent with
those of several other courts, including
one from the Philadelphia
based Third Circuit Court of
Appeals that the Supreme Court
declined to review last year. Still,
several otherwise unrelated cases
on which the Supreme Court is
currently considering review do
raise the question whether to reevaluate
its long-standing precedent
that there is no constitutional
free exercise exemption from
complying with religiously neutral,
generally applicable government
policies.
Several high court justices have
elsewhere signaled their openness
to taking that step. If the Supreme
Court grants review in any of those
cases — including this one if the
plaintiffs seek review — an important
brick in the wall of separation
between church and state could be
breached.
A total of nine amicus briefs were
fi led in this case — none of them
supporting the plaintiffs’ position.
While all the major LGBTQ rights
organizations as well as other civil
rights groups and medical and
educational professional groups
weighed in, the usual suspects on
the bigoted right were AWOL.
The American Civil Liberties
Union was permitted to argue on
behalf of the rights of the transgender
students in the district.
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