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Federal Appeals Court Upholds Oregon District's Pro-Transgender 'Safety Plan'

A federal appeals court has upheld an Oregon school district's "student safety plan" that allows transgender students to use restrooms, locker rooms, and showers that match their gender identity, rejecting multiple legal theories that such a policy violates Title IX or the privacy, parental, or religious rights of those students and parents who object.

"We ... hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender," said a decision by a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

"We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children," the court said in its Feb. 12 decision in Parents for Privacy v. Barr.

The court said it was "clear that this case touches on deeply personal issues about which many have strong feelings and beliefs." When the U.S. Supreme Court heard arguments last fall in a pending case about the rights of gay and transgender workers, several justices seemed keenly interested in how their ruling might affect the debate over the use of school restrooms by transgender students.

But the 9th Circuit's decision was consistent with a recent wave of federal district and appeals court rulings that have ruled in favor of transgender student rights and found against privacy arguments raised by students who object to using the same facilities as transgender students. The Supreme Court last May declined to hear an appeal in a case from Pennsylvania in which lower federal courts upheld a school district's pro-transgender policy against a similar challenge by objecting students.

The Oregon case involves the 3,000-student Dallas School District No. 2, which adopted its student safety plan after a student at Dallas High School who was born biologically female began identifying as male. The plan allowed the student to use facilities matching his gender identity and included training for staff and lessons for students against bullying and harassment.

Some parents and students objected to the plan on privacy and religious grounds. They sued on several grounds, including that the plan violated the students' 14th Amendment right to privacy, the parents' fundamental right under the 14th Amendment to direct the education and upbringing of their children, and the families' First Amendment right to free exercise of religion.

The suit also named as defendants the U.S. attorney general, currently William P. Barr, and the U.S. secretary of education, currently Betsy DeVos, but that was based on a theory that federal guidance under President Barack Obama had encouraged the school district's plan. President Donald Trump's administration rescinded that guidance.

A federal district court dismissed the challenge to the student safety plan, and in the new opinion, the 9th Circuit court panel affirms that dismissal.

On the claim under Title IX of the Education Amendments of 1972, the appellate court rejected the challengers' contention that the school district's policy turned school restrooms, locker rooms, and showers into environments of sexual harassment.

"Just because Title IX authorizes sex-segregated facilities does not mean that they are required, let alone that they must be segregated based only on biological sex and cannot accommodate gender identity," the 9th Circuit said. "Nowhere does the statute explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity."

The court rejected the 14th Amendment privacy claim, noting that the school district's plan "provides alternative options and privacy protections to those who do not want to share facilities with a transgender student."

In summary, the court held that the district's "carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students; it does not violate Title IX or any of plaintiffs' cognizable constitutional rights."

The case drew several pro-transgender friend-of-the-court briefs, including from the American Federation of Teachers, the National Education Association, GLSEN, the National PTA, the National School Counselor Association, the National Association of School Psychologists, among others, while the American Civil Liberties intervened on behalf of the transgender student who sparked the policy.

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