On November 11, 2017, various groups of parents and several individuals filed suit in federal district court in Oregon challenging Dallas School District No. 2’s policy of accommodating transgender students’ requests to use sex-segregated school facilities on the basis of their gender identity.

Background & District Court Decision

Pursuant to its Student Safety Plan, the Dallas School District No. 2 acknowledged a student as a transgender male and permitted him to use the locker room and bathroom that corresponded to his gender identity. The Student Safety Plan also provided that all staff would receive training and instruction regarding Title IX and require teachers to teach about bullying and harassment. The suit alleged that the District’s policy violated children’s civil rights by forcing them to share locker rooms with students whose gender identity does not match their biological sex. The District Court dismissed the parents’ claim, finding that the School District’s policies did not violate the rights of non-transgender students.

Ninth Circuit Decision

On February 2, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld the District Court’s dismissal of the suit. The three-judge panel held that the District’s policy does not violate other male students’ Fourteenth Amendment right to privacy. Specifically, the Ninth Circuit found that there is no fundamental privacy right to avoid all risk of intimate exposure to a transgender individual that was assigned the opposite biological sex at birth. The Court of Appeals commented 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, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.”

In addition, the panel concluded that the policy does not conflict with Title IX because it sought to avoid discrimination and ensure the safety and well-being of transgender students. The Ninth Circuit held that a policy that treats all students equally does not discriminate on the basis of sex, and that normal use of privacy facilities does not constitute sexual harassment under Title IX just because a person is transgender. The Court opined that the statute does not explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity.

Lastly, the panel held that the “Student Safety Plan was rationally related to a legitimate state purpose and did not infringe upon plaintiffs’ First Amendment free exercise rights because it did not target religious conduct.” The panel held “because the Student Safety Plan qualified as neutral and generally applicable, it was not subject to strict scrutiny.”

Supreme Court Denies Certiorari

Parents for Privacy filed a petition for writ of certiorari in the U.S. Supreme Court. On December 7, 2020, the Court denied this request. As a result, the Ninth Circuit’s decision stands and remains binding precedent in that jurisdiction.

If your school has any questions regarding implementing a policy which allows transgender students to use facilities that correspond with their gender identity, contact John Borkowski, Aleks Rushing, Skye Parr, Catarina Colón or your Husch Blackwell education attorney.