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Parents for Privacy v. Barr: Takeaways after Cert. Denial

Locker room public school
By John W. Borkowski, Aleks Ostojic Rushing, Skye Parr & Catarina Colón on December 22, 2020
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On November 11, 2017, various groups of parents and several individuals filed suit in federal district court in Oregon challenging Dallas School District No. 2’s policy of accommodating transgender students’ requests to use sex-segregated school facilities on the basis of their gender identity.

Background & District Court Decision

Pursuant to its Student Safety Plan, the Dallas School District No. 2 acknowledged a student as a transgender male and permitted him to use the locker room and bathroom that corresponded to his gender identity. The Student Safety Plan also provided that all staff would receive training and instruction regarding Title IX and require teachers to teach about bullying and harassment. The suit alleged that the District’s policy violated children’s civil rights by forcing them to share locker rooms with students whose gender identity does not match their biological sex. The District Court dismissed the parents’ claim, finding that the School District’s policies did not violate the rights of non-transgender students.

Ninth Circuit Decision

On February 2, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld the District Court’s dismissal of the suit. The three-judge panel held that the District’s policy does not violate other male students’ Fourteenth Amendment right to privacy. Specifically, the Ninth Circuit found that there is no fundamental privacy right to avoid all risk of intimate exposure to a transgender individual that was assigned the opposite biological sex at birth. The Court of Appeals commented 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.”

In addition, the panel concluded that the policy does not conflict with Title IX because it sought to avoid discrimination and ensure the safety and well-being of transgender students. The Ninth Circuit held that a policy that treats all students equally does not discriminate on the basis of sex, and that normal use of privacy facilities does not constitute sexual harassment under Title IX just because a person is transgender. The Court opined that the statute does not explicitly state, or even suggest, that schools may not allow transgender students to use the facilities that are most consistent with their gender identity.

Lastly, the panel held that the “Student Safety Plan was rationally related to a legitimate state purpose and did not infringe upon plaintiffs’ First Amendment free exercise rights because it did not target religious conduct.” The panel held “because the Student Safety Plan qualified as neutral and generally applicable, it was not subject to strict scrutiny.”

Supreme Court Denies Certiorari

Parents for Privacy filed a petition for writ of certiorari in the U.S. Supreme Court. On December 7, 2020, the Court denied this request. As a result, the Ninth Circuit’s decision stands and remains binding precedent in that jurisdiction.

If your school has any questions regarding implementing a policy which allows transgender students to use facilities that correspond with their gender identity, contact John Borkowski, Aleks Rushing, Skye Parr, Catarina Colón or your Husch Blackwell education attorney.

 

Photo of John W. Borkowski John W. Borkowski

Coming from a family of teachers, John knows that educators are dedicated to serving students and society. His lifelong passion for education underlies the insightful counsel he provides to colleges, universities and school districts.

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Photo of Aleks Ostojic Rushing Aleks Ostojic Rushing

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on…

As a licensed teacher, Aleks’ passion for education runs deep and is at the core of her work with clients. She knows that every client and every student requires a unique approach to optimize success. Aleks counsels K-12 and higher education clients on investigations, litigation and compliance matters arising from a wide range of civil rights and educational funding issues. These include Title IX, Title IV, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the Family Educational Records Privacy Act (FERPA).

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Photo of Skye Parr Skye Parr

A natural advocate, Skye is dedicated to client defense. Skye is passionate in her representation of clients. She understands that all good client advocacy begins with due diligence, thoroughly researching each unique client matter in order to offer the best customized strategies and

…

A natural advocate, Skye is dedicated to client defense. Skye is passionate in her representation of clients. She understands that all good client advocacy begins with due diligence, thoroughly researching each unique client matter in order to offer the best customized strategies and solutions.

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Photo of Catarina Colón Catarina Colón

As an employment-focused litigator and investigator, Catarina advises clients on equal rights, discrimination and retaliation claims, wage and hour issues, Family and Medical Leave Act (FMLA) matters, and Title VII actions. Catarina also works on the firm’s Higher Education team, assisting clients with…

As an employment-focused litigator and investigator, Catarina advises clients on equal rights, discrimination and retaliation claims, wage and hour issues, Family and Medical Leave Act (FMLA) matters, and Title VII actions. Catarina also works on the firm’s Higher Education team, assisting clients with extensive employment, student conduct and institutional nondiscrimination efforts. This includes NCAA compliance and investigations into Title IX and Section 504 of the Rehabilitation Act claims, as well as other federal civil rights statutes and regulations.

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  • Posted in:
    Education
  • Blog:
    K-12 Legal Insights
  • Organization:
    Husch Blackwell LLP
  • Article: View Original Source

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