Transgender students….coming to SCOTUS?

We have been predicting for some time that the Supreme Court would take up the issue of transgender students.  Maybe so. But last month they turned down an opportunity to do that by declining to hear an appeal from the 9th Circuit. 

The 9th Circuit ruled in favor of an Oregon school district that adopted a policy (the Student Safety Plan) to accommodate transgender students by allowing them to use bathrooms, locker rooms and showers that match the student’s gender identity, rather than their biological sex.  It was a unanimous ruling from the three-judge panel in a 55-page opinion.  The suit was filed by parents and students who opposed the plan.   The plaintiffs alleged that the district’s Student Safety Plan policy violated four legal standards. 

First, the 14th Amendment right to privacy.    There is such a right, but the court held that it was not broad enough to cover this situation.   The 14th Amendment “does not provide high school students with a constitutional privacy right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different from theirs.”

Second, Title IX.  The court rejected the Title IX claim for several reasons. First, the Safety Plan treated boys and girls alike. Thus on the face of it, there was no discrimination based on sex. Second, although Title IX permits sex-segregated facilities, it does not require them. Third, the claim of a “hostile environment” lacked evidence of anything that met the standard of “severe, pervasive and objectively offensive.”  There was no evidence in the record of any conduct by transgender students that amounted to “harassment.”  Key Quote:

Plaintiffs allegedly feel harassed by the mere presence of transgender students in locker and bathroom facilities. This cannot be enough.  The use of facilities for their intended purpose, without more, does not constitute an act of harassment simply because a person is transgender.

Third, the right of parents under the 14th Amendment to direct the upbringing of their children.  This well-established Constitutional right permits parents to choose a private school.  It does not permit parents to dictate curriculum or policy in the public school. Key Quote:

While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child.  (Emphasis in original).

Fourth, the Free Exercise of Religion clause in the First Amendment.   The court concluded that the Student Safety Plan was neutral regarding religion. It did not “force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs.” Moreover, it applied across the board to believers of all kinds, and non-believers as well.  Since it was “neutral” and “generally applicable” it would be deemed constitutional as long as it was rationally related to a legitimate governmental objective. The court held that it was:

The Student Safety Plan is rationally related to the legitimate purpose of protecting student safety and well-being, and eliminating discrimination on the basis of sex and transgender status.

Let’s put this in perspective.   The court did not say that schools must adopt a policy like this one. It says that they may.  Moreover, this decision is not a binding legal precedent in Texas, but can, and will, be cited by Texas courts as “persuasive authority.” By refusing to hear the appeal, the Supreme Court leaves this precedential opinion in place.

Second, as this case illustrates, schools can get sued regardless of what decision they make about accommodating transgender students. There are cases where schools limit all students to bathrooms that match the biological sex. Schools can be sued in cases like that by the transgender student.  Here we have a school district that accommodated the transgender students and got sued by parents who objected to the policy. 

Third, public schools are ground zero in our nation’s culture wars, as evidenced by the number of advocacy groups that filed briefs in this case. They included: ACLU, Transgender Students and Allies, the National Women’s Law Center, National PTA, GLSEN, American School Counselor Association, National Association of School Psychologists, the American Academy of Pediatrics, the American Medical Association, the American Public Health Association, 13 other medical, mental health and other health care organizations, the National Center for Lesbian Rights, the Transgender Law Center, PFLAG, Inc., Trans Youth Equality Foundation, Gender Spectrum, Gender Diversity, the Transactive Gender Project, the National Education Association, the State of Oregon, the Lambda Legal Defense and Education Fund, school administrators from 30 states and the District of Columbia, the Anti-Defamation League, Americans United for Separation of Church and State, Bend the Arc Jewish Action, Central Pacific Conference of the United Church of Christ, Corvallis Area Lavender Women, Greater Seattle Business Association, Hadassah, the Women’s Zionist Organization of America, Human Rights Campaign, Jewish Council for Public Affairs, Jewish Federation of Greater Portland, Keshet: For LGBTQ Equality in Jewish Life, National Center for Transgender Equality, National Center for Youth Law, National Council of Jewish Women, National Queer Asian Pacific Islander Alliance, OCA-Asian Pacific American Advocates, People for the American Way Foundation, Public Counsel, South Asian Americans Leading Together, Union for Reform Judaism and the Central Conference of American Rabbis.

The case is Parents for Privacy v. Barr, (yes, it’s that Barr), decided by the 9th Circuit on February 12, 2020.  We found it at 2020 WL 701730.  The Supreme Court decided not to hear the case on December 7, 2020.


Tomorrow: We hear from Rip Snort!!