Parents for Privacy v. Barr, No. 18-35708 (9th Cir. 2020)
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A policy that allows transgender students to use school bathroom and locker facilities that match their self-identified gender in the same manner that cisgender students utilize those facilities does not infringe Fourteenth Amendment privacy or parental rights or First Amendment free exercise rights, nor does it create actionable sex harassment under Title IX.
The Ninth Circuit affirmed the district court's dismissal of an action challenging an Oregon public school district's Student Safety Plan as violating the Constitution and numerous other laws. The Plan allowed transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth.
The panel held that plaintiffs failed to state a federal claim upon which relief can be granted, and that the district court's carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students. The panel held that there is no Fourteenth Amendment right to privacy to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth; a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender; 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; and the school district's policy is rationally related to a legitimate state purpose, and does not infringe plaintiffs' First Amendment free exercise rights because it does not target religious conduct.
Court Description: Civil Rights. The panel affirmed the district court’s dismissal of an action alleging that an Oregon public school district violated Title IX, as well as the constitutional rights of students and of parents, when it allowed transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. The Dallas School District No. 2 implemented a Student Safety Plan after a student who had been born and who remained biologically female publicly identified as a boy, and asked school officials to allow him to use the boys’ bathroom and locker room. The Plan acknowledged the student as a “transgender male” and permitted him to use the boys’ locker room and bathroom facilities with his peers. PARENTS FOR PRIVACY V. BARR 3 The Plan provided that the student could use any of the bathrooms in the building to which he identified sexually. The Student Safety Plan also provided, among other things, that all staff would receive training and instruction regarding Title IX, and that teachers would teach about anti-bullying and harassment. The panel held that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth. Thus, the panel held that plaintiffs failed to show that the contours of the privacy right protected by the Fourteenth Amendment were so broad as to protect against the School District’s implementation of the Student Safety Plan. This conclusion was supported by the fact that the Student Safety Plan provided alternative options and privacy protections to those who did not want to share facilities with a transgender student, even though those alternative options admittedly appeared inferior and less convenient. The panel held that the Student Safety Plan sought to avoid discrimination and ensure the safety and well-being of transgender students; it did not violate Title IX. Thus, the panel held 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. The panel stated that 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. Nowhere does the statute explicitly state, or even suggest, that schools may not allow transgender students to 4 PARENTS FOR PRIVACY V. BARR use the facilities that are most consistent with their gender identity. The panel held 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. The panel stated that given that Supreme Court and Ninth Circuit case law not only have not recognized the specific rights asserted by plaintiffs, but further foreclosed recognizing such rights as being encompassed by the fundamental parental rights protected by the Fourteenth Amendment’s Due Process Clause, amendment of this claim would be futile. The panel held that the Student Safety Plan was rationally related to a legitimate state purpose and did not infringe plaintiffs’ First Amendment free exercise rights because it did not target religious conduct. The panel held that because the Student Safety Plan qualified as neutral and generally applicable, it was not subject to strict scrutiny. The panel rejected plaintiffs’ argument that strict scrutiny was required because plaintiffs alleged multiple constitutional claims concerning fundamental rights. The panel concluded that the district court did not err by failing to allow plaintiffs leave to replead because the problem with plaintiffs’ complaint was not the sufficiency of their factual allegations, but rather that plaintiffs’ legal theories failed. Amending the complaint would not change, for example, the extent of the rights that are protected by the Fourteenth Amendment’s Due Process Clause. As a result, PARENTS FOR PRIVACY V. BARR 5 the panel affirmed the district court’s denial of leave to amend.