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SCOTUS Refuses to Overturn Ruling That Allowed Students to Use the Bathroom Aligned with Gender Identity


The U.S. Supreme Court on Monday rejected a request to hear a case challenging an Oregon high school’s policy allowing transgender students to use the bathroom that corresponds with their gender identity. The petition filed by the advocacy group Parents for Privacy was rejected by the justices without comment, leaving in place a lower court ruling which held that the district’s policy did not impinge on parents’ childrearing rights or students’ privacy rights.

The case, Parents for Privacy v. William P. Barr, stems from a 2017 lawsuit filed after the Dallas School District No. 2 put in place the anti-discrimination bathroom and locker room policies. Portland-based U.S. District Judge Marco A. Hernandez dismissed the action in 2018, leading the parents to file an appeal with the Ninth Circuit.

A three-judge panel on the circuit court affirmed Hernandez’s ruling in February, concluding that the Fourteenth Amendment did not provide viable privacy claims for either parents or students to challenge the policy.

“We agree with the district court and 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,” Judge A. Wallace Tashima wrote in a 55-page opinion that SCOTUS chose not to review.

“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.”

While the justices have not yet agreed to hear a case directly related to transgender bathroom policies, the U.S. Court of Appeals for the Fourth Circuit earlier this year cited to Justice Neil Gorsuch’s landmark opinion in Bostock v. Clayton County in holding that that public schools cannot prohibit transgender students from using the bathroom that corresponds to their gender identity.

In Bostock, the court stated that it was “impossible” to discriminate against a transgender individual without taking that person’s sex into account, a rationale that was mirrored by the appellate court’s August ruling.

“After the Supreme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex,’” the opinion stated. “Although Bostock interprets Title VII of the Civil Rights Act of 1964, it guides our evaluation of claims under Title IX. That is because the discriminator is necessarily referring to the individual’s sex to determine incongruence between sex and gender, making sex a but-for cause for the discriminator’s actions.”

[image via SAUL LOEB/AFP via Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.