A federal judge in Oregon is the latest to rule that transgender students can use bathrooms and locker rooms matching their gender identity without infringing on any other students’ rights.
A group called “Parents for Privacy” filed suit against the Dallas School District in Dallas, Oregon after it implemented a “School Safety Plan” affirming transgender students and guaranteeing they can use facilities that match their gender. According to the plaintiffs, the presence of a transgender boy in the restroom caused other boys to experience “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress.” Rejecting the gender identity of trans students, they argued that “the ability to be clothed in the presence of the opposite sex… is fundamental to most people’s sense of self-respect and personal dignity.”
But U.S. District Judge Marco Hernández, an Obama appointee, wasn’t buying it. In his decision this week, he noted that all the cases the plaintiffs cited to argue about privacy rights were “prisoner and police cases,” not education cases. “Those cases involved government officials viewing or touching the naked bodies of persons of the opposite sex against their will,” he wrote. “Even under some of those circumstances, courts have rejected the asserted privacy right.”
Hernández agreed with the school district that “high school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs.” They might feel threatened that a transgender student might see them in a state of undress, but that does not rise to a constitutional claim. “To hold otherwise would sweepingly expand the right to privacy beyond what any court has recognized,” he wrote.
The plaintiffs also argued that allowing transgender students to use facilities created a “hostile environment” in violation of Title IX. “The mere presence of a transgender student is insufficient to establish a hostile environment,” Hernández countered. “Indeed, it is telling that Plaintiffs’ complaint does not contain any allegation of harassment or misuse of school facilities.”
He also pointed out that a ruling in their favor — one that prohibited transgender students from using facilities that match their gender identity — would be a violation against those students. “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources,” he wrote.
If parents disapprove of granting transgender students access to facilities, parents are free to remove their children from Dallas High School, Hernández explained. “Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished,” he wrote.
Hernández dismissed all of their claims outright. “The Court finds that Plaintiffs cannot plausibly re-allege their claims and that any amendment would be futile,” he concluded.
This decision is the latest in a quickly growing chain of decisions by federal courts protecting transgender students from either discriminatory policies or parents who oppose inclusive policies. Each of these decisions borrows from those that preceded it, even though the decisions are from different parts of the country and aren’t controlling precedent. Hernández’s decision, for example, cites cases from Illinois, Wisconsin, Ohio, Pennsylvania, and Virginia and notes how many of them informed each other.
While several federal courts across the country have established that Title IX’s nondiscrimination protections on the basis of “sex” protect transgender students, the U.S. Court of Appeals for the Ninth Circuit does not yet have such a precedent protecting what facilities trans students can use at school. If the parent group appeals, however, that could soon change.