Ruling supports school district's transgender policy

By Andrew Selsky
Associated Press

SALEM, Ore. (AP) — A federal judge has dismissed a lawsuit against an Oregon school district’s policy that allows transgender students to use locker rooms and bathrooms of the gender they identify with instead of their birth sex.

Some parents and students at a high school in Dallas, Oregon, said in the lawsuit that the policy caused “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress produced by using the restroom with students of the opposite sex.”

Similar lawsuits have been dismissed by courts in several other parts of the country. Mat dos Santos, legal director at the American Civil Liberties Union of Oregon which intervened in this lawsuit, said the group would fight a similar one recently filed in Sutherlin, Oregon.

In his 56-page ruling, U.S. District Judge Marco Hernandez said “high school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs.”

The ACLU and the ACLU of Oregon intervened in the case  on behalf of Basic Rights Oregon, a non-profit organization that protects the rights of Oregon’s LGBTQ community.

The lawsuit was triggered by the Dallas School District’s decision to allow student Elliot Yoder, a transgender boy, to use boys’ facilities. The school has a gender-neutral bathroom that Yoder used for changing before gym, and he asked to use the boys’ facilities because it was two floors from the locker room. Other students noticed when he left to change.

Brook Shelley of Basic Rights Oregon said Tuesday’s ruling sends a clear message to school districts that transgender students deserve as safe and affirming an education as every other student.

“We are thrilled with the judge’s decision,” Shelley said.

The Third U.S. Circuit Court of Appeals in Philadelphia in May rejected a similar lawsuit, saying plaintiffs may experience stress because of transgender students’ presence in school facilities, but that stress was not “comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity,” Hernandez noted.

The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions “does not give rise to a constitutional violation,” Hernandez concluded.

Furthermore, bathrooms have stalls with doors for privacy, he noted.

Herb Grey, an attorney for the plaintiffs, did not immediately respond to requests for comment sent by phone and email. He earlier said the district’s policy violated the civil rights of the majority of the students who do not identify as transgender. Boys using the locker room and bathroom feel embarrassed and ashamed to have to disrobe in the presence of another student who was biologically female, he said.

The lawsuit named the Oregon Department of Education and Oregon Gov. Kate Brown because of guidelines issued by the state last year outlining what districts should do to accommodate transgender students. The guidelines are not the law but are based on numerous court opinions that have interpreted Title IX protections as extending to transgender students.

The lawsuit also named the U.S. Department of Education and U.S. Secretary of Education Betsy DeVos, although the Trump administration rolled back an Obama-era directive on transgender inclusion last year.

About 15,000 people live in Dallas, a town in an agricultural area 15 miles (24 kilometers) west of Salem, the state capital.

A federal magistrate in Illinois in 2016 sided against parents in Palatine, Illinois, who had sued under similar circumstances.

A Pennsylvania school district in 2017 settled a lawsuit brought by three transgender students who had been barred from using bathrooms that corresponded to their gender identity.