Federal Judge Rules In Favor Of Transgender Students In Restroom Access Case

A Federal Judge in Oregon has rejected an efforts by a parent's group to block a school district policy that allows transgender students to use the restroom facilities that conform to their gender identity.

Last week, a Federal District Court Judge in Oregon became the latest Federal Judge to rule in favor of a transgender student seeking access to the bathroom and locker room facilities of the gender with which they identify rather than their biological gender:

A federal judge in Oregon issued a ruling this week in favor of transgender students, saying that forcing them to use restrooms that correspond with the gender they were assigned at birth would violate civil rights law.

In a 56-page opinion released Tuesday, Judge Marco A. Hernández of Federal District Court in Portland said that transgender students should be allowed to use bathrooms that match the gender they identify with. The ruling upheld the policy of a school district in Dallas, Ore., that allowed a male transgender student to use the boys’ restrooms, showers and locker rooms.

The judge dismissed claims by some students and parents saying that other male students experienced “embarrassment, humiliation, anxiety, intimidation, fear, apprehension and stress produced by using the restroom with students of the opposite sex.”

Judge Hernández wrote in his opinion, “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources.”

(…)

The Oregon case began in 2015, when Elliot Yoder, a student who had been using female restrooms and locker rooms, publicly identified as a boy and asked to use the boys’ facilities. The school put in place a policy that year allowing him to do so.

A group of parents and other members of the community, after seeking to undo the policy at local school board meetings, sued in 2017, according to the judge’s opinion. Lawyers representing them did not respond to requests for comment Thursday, and Elliot could not be reached for comment.

Gabriel Arkles, a lawyer with the American Civil Liberties Union who argued the Oregon case, said the lawsuit was part of a coordinated national effort to challenge policies allowing transgender students to use bathrooms for genders they identify with.

“It’s definitely a part of a strategy,” he said.

Gary McCaleb, senior counsel with the Alliance Defending Freedom, which has argued in cases in favor of restricting bathroom use, said on Thursday that the judge’s ruling denied students’ privacy.

“The Oregon ruling treats sex as if it were determined by a person’s perception of their masculinity or femininity, rather than the objective fact that a person is either male or female,” he said.

This ruling out of Oregon is only the latest development regarding legal efforts attacking, or seeking to uphold. school policies regulating how transgender students are to be treated when it comes to bathroom and locker room facilities. Most recently, for example, a Federal Judge in Virginia breathed new life into the case of Gavin Grimm, a transgender student in Glouster County, Virginia who was challenging the school district’s policy that barred him from using the male restroom facilities notwithstanding the fact that he is genetically female. Grimm had previously won his argument before both the District Court and the Fourth Circuit Court of Appeals, but his case was sent back to the District Court by the Supreme Court rather than receiving a ruling on the merits. The new ruling in Grimm’s favor sets the case up for an eventual return to the Supreme Court. At the same time as the decision in the Grimm case, the Third Circuit Court of Appeals upheld the policy of a suburban Philadelphia area school district that allowed transgender students to use the restrooms that match the gender they identify with. In another case handed down earlier this year, a Federal Judge in Maryland ruled in favor of a transgender student whose school district had sought to bar her from using the restroom facilities that matched her gender identity. Another victory for transgender rights came in December of last year when a District Court Judge in Illinois ruled in a case similar to the one in Oregon that had been brought by a group of parents seeking to bar a school district from enacting a policy that allowed transgender students to use the bathroom and locker rooms matching their gender identity. In that case, the Judge sided with the school district and the transgender student at the center of the case, and against the parents seeking to overturn the policy. In May of last year, meanwhile, the Seventh Circuit Court of Appeals ruled in favor of a Wisconsin student who had sued his school district after it sought to bar him from using the restroom facilities that match his gender identity.

The present case is somewhat different from many of these previous cases in that, rather than involving a challenge by a transgender student to a policy that barred them from using the restroom facility that matched their gender identity, it deals with a challenge by a group of parents and community groups challenging a school policy that recognized the rights of transgender students to use the restroom facilities that correspond to their gender identity. In their lawsuit, these parents claimed that this policy was unconstitutional and in violation of existing laws based on a number of claims ranging from violations of a “right to privacy” to religious liberty claims and a number of other arguments. In his opinion, which is embedded below, Judge Hernández rejected each of these claims and held that the rights of the transgender students would be far more adversely impacted by forcing them to utilize facilities inconsistent with their gender identity than whatever rights other students may have been harmed by the existing policy. In their lawsuit, the parents alleged, for example, that allowing a biologically female student who identifies as male to use the boy’s facilities would cause male students to experience “embarrassment, humiliation, anxiety, intimidation, fear, apprehension and stress produced by using the restroom with students of the opposite sex.” Based on the opinion, though, it seems clear that these assertions are based mostly on pre-conceived notions about what being transgender means and on what can only be described as bigotry dressed up as a religious principle. Additionally, it’s worth noting that if the school district had adopted the policy that the parents are demanding, it would have exposed itself to legal liability in the inevitable lawsuits that would be brought by transgender students who are being denied access to the facilities that conform to their gender identity.

As a matter of both policy and law, it seems fairly clear to me that the transgender students in these cases have a far stronger argument than opponents such as the parents in this particular case have in opposition to policies that recognize the reality of gender identity and which have adopted restroom policies in conformity with that identity. As the Departments of Justice and Education under the Obama Administration argued, it seems fairly clear that discrimination based on gender identity falls within the type of discrimination based on “sex” that is barred by the Civil Rights Act of 1964 and by Title IX, which extended the protections of the 1964 act into the education field. Based on that conclusion, the Obama Administration had advised school districts that barring students from access to restroom facilities that conform to their gender identity would potentially leave school districts open to challenges under those Federal laws. While the Trump Administration has since rescinded those guidelines, the legal argument that was made pursuant to them has been cited by several Federal Courts in support of their rulings in favor of transgender students.

In addition to that statutory argument, several recent opinions in favor of the students have found that policies that do not recognize the student’s gender identity violate a student’s rights under the Equal Protection Clause. This is a view that has been adopted by both the Seventh Circuit Court of Appeals and by a Federal District Court Judge in Maryland. In both cases, the Court found that a claim of discrimination based on gender identity must be judged based on so-called “heightened” or “intermediate” scrutiny, meaning that the jurisdiction defending the law being challenged must show that it furthers an important government interest by means that are substantially related to that interest. In both cases, the respective courts found that the policies barring transgender students from using the restroom that corresponds to their gender identity violated the 14th Amendment’s Equal Protection Clause, an analysis that seems to be fairly strong.

As with the other cases, this case will likely be appealed to the relevant Circuit Court of Appeals, which in this case would be the Ninth Circuit. While this particular Court has yet to rule in this type of case, it seems likely that they would view cases such as this similar to the manner in which other courts have, and find that the school’s interest in protecting the rights of transgender students, as well as protecting itself from legal liability, outweigh the rather flimsy arguments advanced by the opponents of the policy.

Here’s the opinion:

Parents for Privacy Et Al v. Dallas School District No. 2 Et Al by Doug Mataconis on Scribd

FILED UNDER: Education, Law and the Courts, LGBT Rights, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    So long as people go to the bathroom in a bathroom, rather than just peeing in the hallway, why are other people all so hung up on which bathroom they use?

    (Also, I have a great idea for a civil disobedience campaign…)

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  2. Kathy says:

    @Gustopher:

    If prejudice and bigotry were rational and honest, they couldn’t exist.

  3. DrDaveT says:

    rather than their biological gender

    Sigh.

    OK, let’s go through this one more time.

    There is no such thing as a “biological gender”. Gender is a social (or linguistic) construct; it’s about labels and expectations. Or definite and indefinite articles, in most languages.

    If you want to talk about biology, you’re talking about sex. People with two X chromosomes (and nothing else) can legitimately be called “biologically female”. Sex, not gender. XY makes you biologically male — again, sex and not gender. People of either biological sex (or various indeterminate biological states) can identify as either (or neither) gender.

    This is not rocket science. Getting it wrong repeatedly is a tell.

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  4. James Pearce says:

    @DrDaveT:

    Getting it wrong repeatedly is a tell.

    Ts and their allies demand tolerance and understanding while displaying absolutely none of it. When can we stop the condescending lectures on this stuff?

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  5. Just nutha ignint cracker says:

    @James Pearce: Take your troll elsewhere, please. Some people are trying to have a discussion about which there is great confusion and some discomfort because of it. You’re not helping. I’m not trying to diminish your first amendment right to speak, just exercising my natural law right not to have to listen to it.

  6. James Pearce says:

    @Just nutha ignint cracker:

    Take your troll elsewhere, please.

    No.

    If you want to argue that Ts (and I have to use that term to avoid the petty arguments over Transgender versus Transgendered) should not be discriminated against, fine. I’m with you. I will never say “You can’t use that bathroom.”

    But if you want to take that a step further, as in “There is no such thing as a “biological gender,” then I –and a whole lot of other sympathetic people– are getting off the bus. And you can’t get us back by pretending there’s some vast gulf in meaning between terms like “gender” and “sex,” which are virtual synonyms.

    Who is the one with body dysphoria here?

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  7. Tyrell says:

    @James Pearce: There is a growing trend to remove any references to gender. This is showing up with a gender neutral language set of rules that some government agencies and colleges have bought into. Some people are demanding that words such as ladies, gentlemen, sir, mam, he, she, and Mr. Mrs no longer be used in speech or writing, with resulting consequences. Some are wanting to remove male/female from the drivers license, and other official documents.
    Where will this go? To the point where a person can legally identify as anything – plants, trees, animals, robots? Where is the line?

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  8. vrf says:

    @DrDaveT: Yes, and locker rooms and bathrooms have always been divided by biological sex, with nothing to do with gender.

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  9. JohnMcC says:

    In the vast and unenlightening literature defining the difference between ‘conservative’ and ‘liberal’ perspectives I have noticed only one thing that is actually true: Conservatives believe that there are many immutable parts of life. To my conservative family members a pound is — by god! — the same 16 ounces it was in 1789. Gold is gold. Male is male. Things are fixed and society is based on fixed values like that.

    Liberals (like me) can be comfortable with the idea that things change. A unit of weight can be one thing at one time lighter or heavier at another. People can discover different identities within themselves. Und so weiter.

    The concept of ‘transgender’ does not fit into the conservative world; those poor souls who think they are ‘in a wrong body’ are mistaken and in need of assistance to accept the true person they were born to be.

    No one wins that argument.

  10. James Pearce says:

    @Tyrell:

    There is a growing trend to remove any references to gender.

    I’ve seen a little bit of that, but I’m not too worried about it. I think we’re reaching a healthier place where people are freer than ever to live how they want to live, but some of the more absurd aspects are being challenged. That’s best for society and that’s best for transgendered\transgender people.

    Liberals (like me) can be comfortable with the idea that things change. A unit of weight can be one thing at one time lighter or heavier at another.

    Yeah, but here’s what has changed: The level of acceptance for non-conforming individuals and the understanding behind the science of their affliction*. What hasn’t changed: the nature of biology.

    * Is it an affliction?

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  11. John430 says:

    @DrDaveT: If you can promote that claptrap with a straight face, then I have a bridge for sale to you…cheap. LOL!

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  12. Grewgills says:

    @James Pearce:

    What hasn’t changed: the nature of biology.

    Perhaps not, but our understanding of it has changed considerably.

    That’s best for society and that’s best for transgendered\transgender people.

    There isn’t a problem, or not much of one, if someone uses transgendered in ignorance. It can easily be explained and I’m relatively certain it has been explained to you more than once. The problem is when it is used purposefully or in willful ignorance. When it has been explained to you why it is offensive and you continue to use it out of pique or just stubborn refusal to listen to anyone you perceive as an SJW it makes you a @ss.
    So, once again, for the slow to learn:
    Transgendered implies something happened to turn the person from ‘normal’ to something different. It implies an affliction rather than just a difference. Whether you agree with that or not most transgender people do, so if you learn this and continue to use the term you are being a @ss.
    Transgender recognizes that the person was born with a gender identity different from their biological sex and doesn’t make a judgement about that.
    Now you know AGAIN. Please quit pretending that this is some sort of opaque and impenetrable sjw code game to trap people.

  13. James Pearce says:

    @Grewgills:

    Please quit pretending that this is some sort of opaque and impenetrable sjw code game to trap people.

    No need to pretend. The lines have been draw and the whole area has already been landmined. Look at how quickly you turned all school marm on me. “If you don’t eat your meat, you can’t have any pudding!”

  14. Grewgills says:

    @James Pearce:
    You aren’t an idiot. You are being deliberately dense. You know the distinction and why people are offended. Yet you choose to pretend it is impenetrable and any attempt to educate you is being a school marm. Why? Is tweeking sjws (aka owning libs) more important to you than not being a deliberately offensive @ss?

  15. DrDaveT says:

    @James Pearce:

    And you can’t get us back by pretending there’s some vast gulf in meaning between terms like “gender” and “sex,” which are virtual synonyms.

    I know you’re not arguing in good faith here, but for the benefit of the lurkers…

    ‘Christian’ and ‘Catholic’ used to be virtual synonyms too. Would you claim that they still are? That people who insist that they have not only different connotations, but different denotations, are just wrong? The divergence between the two terms revealed a previously tacit assumption that turned out to be wrong. Hold that thought.

    Unless you’re weirder that I think, you don’t actually believe that tables and spoons have sexes. They do, however, have gender, in pretty much any European language except English. Not the same gender, depending on the language, but some gender. (You aren’t one of those anglocentric idiots who think English is somehow normal and other languages are messed up, right? Nah, couldn’t be…)

    If you want to explicitly argue why chromosomes are overwhelmingly important but developmental embryology and psychology don’t matter when it comes to human gender, be my guest. I’m sure it would be amusing. It would at least require you to bring those tacit assumptions out into the open.

  16. James Pearce says:

    @Grewgills:

    You know the distinction and why people are offended.

    No, I honestly do get confused. Also I’m not really convinced that “transgendered” is, or should be, considered a slur. And like I said, I think people who demand tolerance and acceptance for their weirdness need to demonstrate a little bit of tolerance and acceptance for other people, especially those who slip up when it comes to terminology.

    The trans community seems like it has become a very small compound patrolled by bloodthirsty attack dogs. “Which innocent little slip is going to bring out the long knives?”

    @DrDaveT:

    If you want to explicitly argue why chromosomes are overwhelmingly important but developmental embryology and psychology don’t matter when it comes to human gender, be my guest.

    There’s a lot to argue about this topic that is completely verboten because it doesn’t fit within the confines of the accepted political debate.

    Are all trans people, in fact, “born with it?” Or can it be something that develops later in life? Would a culture that is more tolerant of genuine androgyny (and not just the performative “gender-bending” we think of as “androgyny”) lead to fewer people suffering from gender dysphoria? How much of the current approach to gender dysphoria –the embrace and “confirmation” of gender stereotypes– actually contributes to the problem?

    These are all legit questions that SJW types cannot answer and will not address. To them, it’s about politics, not people.

    As usual.

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  17. Kathy says:

    @James Pearce:

    Were you born with deliberate obtuseness, or is it something that developed along your life?

    If you compare being corrected with “long knives,” there’s something really wrong with your sense of morals, if any.

  18. Kylopod says:

    @DrDaveT:

    They do, however, have gender, in pretty much any European language except English.

    Indeed the word gender originally didn’t have anything to do with sex. It comes from a Latin word meaning “type” or “category” (it’s related to the words genre, general, and genocide) and originally referred to when the nouns in a language get grammatical markings according to categories. For instance, Swahili has around 18 genders, none of them masculine or feminine. Nowadays the word “gender” has come to be so closely associated with sex that the word is usually reserved for languages that distinguish between masculine and feminine, while for languages like Swahili the term “noun class” is used instead. But grammatically it’s the exact same process. It just happens that Indo-European languages use sex categories as the basis of their noun classes, and as a result it’s led the word “gender” to be identified with “sex.”

  19. James Pearce says:

    @Kathy:

    If you compare being corrected with “long knives,” there’s something really wrong with your sense of morals, if any.

    Oh please.

    Less than 1% of the population self-identifies as trans, and within that small little sliver of a community, there is a difference of opinion on terminology, so the idea that I need to be “corrected” to conform to some orthodoxy that does not actually exist is completely absurd.

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  20. Kathy says:

    @James Pearce:

    Less than 1% of the population self-identifies as trans, and within that small little sliver of a community, there is a difference of opinion on terminology, so the idea that I need to be “corrected” to conform to some orthodoxy that does not actually exist is completely absurd.

    Do you always make your sentences run, or only when you try to obfuscate?

    Anyway, I sincerely hope the implied correction in the sentence above did not cause you any permanent injury.

  21. James Pearce says:

    @Kathy:

    Do you always make your sentences run, or only when you try to obfuscate?

    I’m trying to be nice.

    While I support trans rights, I also keep a proper perspective on things. Trans people are a small minority and the folks who want to mortgage the future of liberalism to protect them from the pain of incorrectly used pronouns have already been heard.

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  22. Kathy says:

    @James Pearce:

    I’m trying to be nice.

    As nice as a Trumpist Twit.

    While I support trans rights, I also keep a proper perspective on things.

    And Trump is as honest as George Washington.

    What you’re saying is something akin to “I don’t want to kill you on sight or beat you to a bloody pulp. Therefore I have the right to be obnoxious to you, to insult you, to disrespect you, and there’s no reason you should be offended by it.”

    There are Pyrrhic allies. One more ally like that and we’re utterly ruined. And then there’s people like you, who are only pretend Pyrrhic allies.

  23. James Pearce says:

    @Kathy:

    As nice as a Trumpist Twit.

    I’m not a Trumpist. And neither are a lot of other trans-skeptics.

  24. Crusty Dem says:

    @James Pearce:

    Are all trans people, in fact, “born with it?” Or can it be something that develops later in life? Would a culture that is more tolerant of genuine androgyny (and not just the performative “gender-bending” we think of as “androgyny”) lead to fewer people suffering from gender dysphoria? How much of the current approach to gender dysphoria –the embrace and “confirmation” of gender stereotypes– actually contributes to the problem?

    These are all legit questions that SJW types cannot answer and will not address. To them, it’s about politics, not people.

    As usual, you have it exactly backwards. SJW types are the ones saying these questions don’t matter because they’re about people, not politics. You’re the one saying “I support ‘T’s'” while throwing one-offs that their very existence is due to societal ills. We’re saying “It doesn’t hurt you, so STFU”.

    So please. STFU.

  25. Grewgills says:

    @James Pearce:
    Well, it has been explained AGAIN, so you should no longer be confused unless your confusion is deliberate.
    This seems to be all about your issues with SJWs and your obstinate need to be against them regardless of their arguments. It is akin to the standard right wing ‘whatever liberals oppose updated daily’. Please just stop.

  26. James Pearce says:

    @Crusty Dem:

    SJW types are the ones saying these questions don’t matter because they’re about people, not politics.

    The only thing SJW types say is “You’re a bigot.”

    Oh, and STFU. They say that too.

  27. Kathy says:

    @James Pearce:

    And neither are a lot of other trans-skeptics.

    Really? There’s no reason for skepticism. You’ve been arguing with a transgender woman, ergo we exist.

    Careful how you progress with your prejudice. It si tempting to beat up on those who are different, strange, eccentric and weak. But you should stop once they find acceptance and tolerance. Even if you’re uncomfortable not being a jerk in public.

  28. James Pearce says:

    @Grewgills:

    This seems to be all about your issues with SJWs and your obstinate need to be against them regardless of their arguments.

    Seriously, though, a lot of people have issues with SJWs, who –it must be said, apparently– are not the only ones in the country against bigotry.

    @Kathy:

    There’s no reason for skepticism. You’ve been arguing with a transgender woman, ergo we exist.

    The skepticism isn’t about your existence. It’s about the orthodoxy.

  29. Kathy says:

    @James Pearce:

    It’s about the orthodoxy.

    I’m not orthodox. try something else.

  30. Grewgills says:

    @James Pearce:
    The issue is that the rational part of your brain ceases to function as soon as you think you are bringing the fight to the SJWs.
    Someone saying to you, this term is offensive and here’s why isn’t either bringing out the long knives, nor is it being school marmish. It is about your willful inability to accept any change to your orthodoxy whether it is about what minority groups find offensive or the status of white men in our society. You are completely and willfully blind on this front. Even when directly confronted with someone you are offending with your willful ignorance you persist. Why?