Supreme Court update: Oregon parents fail in challenging transgender student policies

The U.S. Supreme Court will not hear the case, which argued that allowing transgender students to use whichever restroom or locker room matches their gender identity violates the constitutional rights of children whose identity corresponds with their birth sex.
By: | December 8, 2020
Getty Images, SudowoodoGetty Images, Sudowoodo

Parents who opposed an Oregon district’s policy of allowing transgender students to use restrooms and locker rooms that match their gender identity will not have an opportunity to convince the U.S. Supreme Court that the policy violated their children’s constitutional rights.

The Court on Monday denied the parents’ petition for review in Parents for Privacy v. Barr, 120 LRP 5579, 949 F.3d 1210 (9th Cir. 2020), cert. denied. In declining to hear the case, the Court effectively preserved the 9th U.S. Circuit Court of Appeals’ ruling at 120 LRP 5579 that the district’s policy did not violate 14th Amendment privacy rights or Title IX.

Scope of privacy rights

The case stemmed from a transgender student’s request to use the boys’ bathroom and locker room at his high school. After the district adopted a student safety plan that allowed the boy to use the facilities that matched his gender identity, the parents of several cisgender students sued to prevent the district from enforcing the plan. The District Court dismissed the parents’ complaint, and the parents appealed.

The 9th Circuit noted that it had recognized a privacy right against bodily exposure in other cases. However, the three-judge panel explained that those cases involved law enforcement and correctional officers viewing, photographing, or touching individuals of the opposite sex against their will.

In this case, the panel observed, the parents did not allege that transgender students were taking nude photographs of their children or otherwise taking purposeful steps to invade their children’s privacy without a legitimate reason. The 9th Circuit agreed with the District Court that the 14th Amendment did not give cisgender teenagers a constitutional right not to share facilities with transgender students.

“This conclusion is supported by the fact that the Student Safety Plan provides alternative options and privacy protections to those who do not want to share facilities with a transgender student, even though those alternative options admittedly appear inferior and less convenient,” U.S. Circuit Judge A. Wallace Tashima wrote.

No duty to segregate facilities

As for the parents’ claim that the district’s policy violated Title IX by turning locker rooms, showers and multi-use restrooms into a “sexually harassing environment,” the 9th Circuit acknowledged that Title IX allows districts to segregate restrooms, locker rooms and showers by sex. However, the panel pointed out that nothing in the statute requires a district to do so.

“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,” Judge Tashima wrote. Furthermore, the panel observed, a transgender student’s use of a restroom or locker room for its intended purpose did not amount to severe and pervasive harassment on the basis of sex.

Because the District Court dismissed the parents’ complaint “with prejudice,” the parents cannot refile their claims against the Oregon district.

Amy E. Slater covers education legal issues for LRP Publications, publisher of DA.