A unanimous three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit has affirmed a ruling by U.S. District Judge Marco A. Hernandez, Jr., that the Dallas School District No. 2 did not violate the legal rights of parents and students who objected to the District’s policy allowing transgender students to use facilities consistent with their gender identity. Parents for Privacy v. Barr, 2020 Westlaw 701730 (February 12, 2020).
The decision was made by a panel comprised entirely of judges appointed by Democratic presidents. Senior Judge A. Wallace Tashima, who was appointed by Bill Clinton, wrote the court’s opinion. The other members of the panel were Susan P. Graber, also appointed by Clinton, and John B. Owens, who was appointed by Barack Obama.
The school district adopted its policy in response to a request from a transgender student, identified in the court’s opinion as Student A, who was identified as female at birth but announced in September 2015 that he identified as a boy and asked school officials to let him use the boys’ bathroom and locker room. This was before the Obama Administration sent out its letter to all school districts advising that transgender students have a legal right to such access, advice that the Trump Administration disavowed shortly after taking office early in 2017.
In response to Student A’s request, the District created a “Student Safety Plan” for Student A and any other transgender student who might make such a request in the future, “in order to ensure that Student A could safely participate in school activities,” wrote Judge Tashima. Under this Plan, Student A and any other transgender student could “use any of the bathrooms in the building to which he identifies sexually.”
The Plan also provide that all school staff would receiving training and instruction regarding Title IX, the federal statute that provides that schools receiving federal funding must afford equal educational opportunity to all students, regardless of their sex. The Plan also provided that the phys ed teacher would be the first to enter and leave the locker room, so the teacher would be present at all times that students were using that facility, and that Student A’s locker would be in direct line of sight of the coach’s office, so the coach would see if anybody interfered with Student A.
The plaintiffs in this lawsuit claim that when Student A began using the boys’ locker room and changing clothes “while male students were present,” the cisgendered boys were caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” since they had to change their clothes in the presence of somebody whose birth certificate said they were female. The presence of privacy stalls in the bathrooms was deemed insufficient by plaintiffs, because they had gaps through which “partially unclothed bodies” could “inadvertently” be seen, and they complained that a single-user bathroom was “often inconvenient or considered inferior because it lacked a shower.”
In other words, they were arguing that the transgender student should have to use the inconvenient and inferior facility rather than them, due to their “stress” and “fear” around the possibility of encountering Student A while using these facilities.
The parents who joined as plaintiffs claimed that the school’s policy interfered with some parents’ “preferred moral and/or religious teaching of their children concerning modesty and nudity,” wrote Judge Tashima. “In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.” They found inconvenient the idea that they would have to resort to changing in the nurse’s office, which was “on the other side of the school,” to avoid such exposure.
Students opposing the plan circulated a petition, but the principal “confiscated” the petitions and ordered students to discontinue that activity, and the District stood firm behind its policy.
The complaint alleged violations by the U.S. Education and Justice Departments of the Administrative Procedure Act, Title IX, the Religious Freedom Restoration Act, and the 1st and 14th Amendments of the Constitution, but the court agreed with Judge Hernandez that the federal defendants were not properly in the case because they had nothing to do with the District’s decision to adopt the policy.
The plaintiffs asserted claims against the District under the 1st and 14th Amendments, charging interference with the privacy rights of cisgender students and interference with the parents’ liberty interest in raising their children, as protected by the Due Process Clause. They also raised claims against the District under Title IX and Oregon’s public accommodations and education laws.
Judge Tashima first tackled the plaintiffs’ privacy arguments, concluding that plaintiffs “fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the District’s implementation of the Student Safety Plan.” He said that because the Plan provides “alternative options and privacy protections” to students who did not wish to be exposed to Student A in the shared facilities, no student was forced into such a situation, even if the alternative options “admittedly appear inferior and less convenient.”
He also rejected the argument that the Plan created a “hostile environment” for cisgender students, in violation of Title IX. Judge Hernandez found that the Plan does not discriminate against any student because of his or her sex, since its rules apply across the board to all students, and noted that decisions by other courts had all agreed that “the presence of transgender people in an intimate setting does not, by itself, create a sexually harassing environment that is severe or pervasive,” and thus fails to meet the standard to find a statutory violation. The 9th Circuit panel stated agreement with Judge Hernandez’s conclusion, rejecting the plaintiffs’ argument that because Title IX regulations authorize schools to have single-sex facilities separately for boys and girls, the schools should be required to maintain such segregation. These regulations were issued to make clear that a school would not be violating Title IX if it had separate facilities for boys and girls, provided they were equal facilities, but not to require schools to exclude transgender students from using the facilities.
The district court rejected the argument that the Plan went so far as to violate the parents’ constitutional rights, pointing out that the Supreme Court and other federal courts have rejected claims by parents that they were entitled to control the school curriculum or policies in order to “protect” their children from influences feared by the parents. “In sum,” wrote Tashima, “Plaintiffs fail to cite any authority that supports their asserted fundamental Fourteenth Amendment parental right to ‘determine whether and when their children will have to risk being exposed to opposite sex nudity at school’ and ‘whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex’ in ‘intimate, vulnerable settings like restrooms, locker rooms, and showers.’”
The court also rejected the parents’ free exercise of religion claim that they had a right to shield their children from exposure to views that the parents would consider immoral on religious grounds. The court referred to Supreme Court precedents rejecting free exercise claims to be exempt from complying with religiously neutral and generally applicable policies that don’t specifically target religious beliefs. “Because the District’s Plan did not force any Plaintiff to embrace a religious belief and did not punish anyone for expressing their religious beliefs,” wrote Tashima, “the district court concluded that the Plan is ‘neutral and generally applicable with respect to religion,’ and therefore did not violate Plaintiffs’ First Amendment rights,” to which the 9th Circuit panel signified its agreement. The court found that any constitutional claim against the Plan would be defeated under the appropriate “rational basis” standard of judicial review, finding that it served a legitimate governmental interest of enabling the transgender student to enjoy equal access to the District’s facilities.
The court concluded that the District’s “carefully-crafted Student Safety Plan seeks to avoid discrimination and ensure the safety and well-being of transgender students,” and that it did not violate Title IX or any constitutional rights of the parents and cisgender students. Thus, the court upheld Judge Hernandez’s decision to grant the defendants’ motion to dismiss the lawsuit.
This result is consistent with rulings by several other courts, including a similar ruling by the Philadelphia-based 3rd Circuit Court of Appeals that was denied review by the Supreme Court last year. However, the Supreme Court is considering petitions in several other cases presenting the question whether to re-evaluate its long-standing precedent that there is no constitutional religious free exercise exemption from complying with religiously-neutral, generally applicable government policies, and several members of the Court have already signaled, in concurring and dissenting opinions, their openness to take that step. If the Court grants review in any of those cases, or this one if the plaintiffs file a petition for review, an important brick in the wall of separation between church and state may be breached.
Meanwhile, the plaintiffs could file a petition for rehearing before an expanded panel of the court. In the 9th Circuit, if a majority of the 29 judges favor such a rehearing, it would go to a panel of eleven members of the Circuit Court.
The court received nine amicus briefs, none of which supported the plaintiffs’ position! The American Civil Liberties was permitted to argue on behalf of the rights of transgender students. All the major LGBT and transgender rights organizations were represented by amicus briefs, as well as a host of professional associations in the fields of medicine, education, and civil rights. The usual opponents of LGBT rights seem to have ignored this appeal, perhaps anticipating the result as predictable, given the liberal reputation of the 9th Circuit, but it is worth pointing out that Donald Trump has appointed a third of the current active judges on the 9th Circuit, and it was just the luck of the draw that this case drew a panel that included none of his appointees. An expanded panel of eleven would necessarily include some of Trump’s appointees.