A federal appeals court decided in favor of an Oregon public school district’s “student safety plan” that allows transgender students to use the bathrooms that correspond to their gender identity and rejects parent and student concerns about privacy.
The “student safety plan” places a student’s gender identity above biological sex and allows students who claim to be transgender to use the bathrooms, locker rooms, and showers that correspond to their gender identity.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco said in its February 12 decision in Parents for Privacy v. Barr that it agreed with the lower court:
We … hold 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. We also hold 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. We hold further 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. Finally, we hold that 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.
Along with pro-transgender rights friend-of-the-court briefs from the nation’s two largest teachers’ unions – the National Education Association (NEA) and the American Federation of Teachers (AFT) – and LGBTQ lobbying group GLSEN, the American Civil Liberties Union (ACLU) represented the Dallas High School biological female transgender student at the center of the case.
The decision noted:
Students who opposed the Student Safety Plan attempted to circulate a petition opposing the policy, but the high school principal confiscated the petitions and ordered students to discontinue doing so or face disciplinary action. Despite the objections raised by several parents and students, the District continued to allow Student A to use the bathroom and locker room that matched the gender with which he identified.
The court disagreed with the plaintiffs’ argument that Title IX – a federal civil rights law that protects individuals from sex discrimination – “uphold[s] the right to bodily privacy” and, subsequently, requires separate facilities based upon biological sex:
[J]ust 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 use the facilities that are most consistent with their gender identity. That is, Title IX does not specifically make actionable a school’s decision not to provide facilities segregated by “biological sex”; contrary to Plaintiffs’ suggestion, the statute does not create distinct “bodily privacy rights” that may be vindicated through suit.
Parents throughout the country have been battling their public school districts that have made policies based on elevating gender ideology above biological sex.
In December, parents in Manchester, Indiana walked out of a school meeting focused on gender identity after reportedly being prohibited from discussing a transgender bathroom policy.
Members of the Manchester school board defended the policy by stating federal law, under Title IX, says transgender students must be permitted to use bathrooms that correspond to their gender identity.
In May 2019, the Supreme Court declined to take up a case against transgender school policies.
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