Things did not go well Thursday for students and parents in an Oregon high school seeking to overturn a policy that allows transgender students to use the restrooms and locker rooms that match their gender identify.
The 9th US Circuit Court of Appeals panel appeared likely to leave the policy in place, given the judges’ aggressive questioning of the lawyer for students seeking to invalidate the rule.
Parents for Privacy, composed of current and former Dallas High School students and their parents, sued to challenge the transgender policy arguing it violates their fundamental right of privacy, free exercise of religion, and Title IX, which bars sex discrimination.
When a senior at the Dallas school southwest of Portland, who was born female but identified as male, was allowed to use the male restroom, locker rooms and showers, the plaintiffs allege the boys suffered embarrassment, humiliation, fear and stress using a facility with the transgender student.
The Portland federal Judge Marco Hernandez dismissed the case outright in 2018 at an early stage and the parents group appealed seeking reinstatement.
“Title IX requires something discriminatory,” said Judge Margaret McKeown. The rule “applies equally to all students of any gender. All students may use any restroom that matches his or her gender identity, right? So, in a sense, it applies across the board, so where is the discrimination,” she asked attorney Ryan Adams for plaintiffs.
“You’ve alleged a privacy right not to come into contact with people we don’t want to,” she said.
Judge Wallace Tashima also confronted Adams. “What are you challenging? The Safe Student Policy violates Title IX because what, it permits students to infringe some right of other students, or is it the school district doing the infringing? What’s your claim?”
Adams insisted Congress did not consider transgender synonymous with sex when it passed Title IX. It was intended to prevent harassment, sexual harassment. The question should be; whether “students have a constitutional right not to share restrooms with students whose sex assigned at birth is different from theirs.”
Judge John Owens asked if under Adams’ legal theory a female student could object to someone born biologically female but identifies as male, could that female student object to that transgender boy using the same locker room as her?
Adams said no. “Even if she was as uncomfortable as the plaintiffs in your case?” Owens pressed?
Support for School Restroom Policy
In defense of the policy, Gabriel Arkles, with Basic Rights Oregon said, “What they are seeking is a new constitutional right; a right to exclude people from these facilities. That is not a right there is any tradition of in this country.”
Arkles said, “There is no fundamental constitutional right to exclude transgender boys from boys facilities or transgender girls from girls facilities. It is not an act of sexual harassment to allow them in,” he said.
“The district had no obligation to honor the preferences of every parent even if they are based on sincerely held religious beliefs,” he said. “What the district did was choose to treat vulnerable persons fairly and equitably. For a transgender person not to be able to use the restroom or the locker room that is consistent with our gender identity can be very harmful.”
The panel did not decide the case but will issue a written ruling in coming weeks.
Case: Parents for Privacy v. Dallas School District, No. 18-35708
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