Parents for Privacy v. Barr

949 F.3d 1210

PARENTS FOR PRIVACY; Jon Golly; Kris Golly, individually and as guardians ad litem for A.G.; Nicole Lillie; Melissa Gregory, individually and as guardian ad litem for T.F.; Parents Rights in Education, an Oregon nonprofit corporation; Lindsay Golly, Plaintiffs-Appellants,

v.William P. BARR, Attorney General; Betsy DeVos ; U.S. Department of Education; United States Department of Justice; Dallas School District No. 2, Defendants-Appellees,Basic Rights Oregon, Intervenor-Defendant-Appellee.

No. 18-35708

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2019 Portland, Oregon

Filed February 12, 2020

J. Ryan Adams (argued), Canby, Oregon; Herbert G. Grey, Beaverton, Oregon; for Plaintiffs-Appellants.

Dennis Fan (argued) and Marleigh D. Dover, Appellate Staff; Billy J. Williams, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees William P. Barr, Betsy DeVos; U.S. Department of Education, and United States Department of Justice.

Blake H. Fry (argued) and Peter R. Mersereau, Mersereau Shannon LLP, Portland, Oregon, for Defendants-Appellees Dallas School District No. 2.

Gabriel Arkles (argued) and Shayna Medley-Warsoff, American Civil Liberties Union Foundation, New York, New York; Peter D. Hawkes and Darin M. Sands, Lane Powell PC, Portland, Oregon; Matthew W. dos Santos and Kelly Simon, ACLU Foundation of Oregon; for Intervenor-Defendant-Appellee.

Jesse Ryan Loffler, Cozen O’Connor, Pittsburgh, Pennsylvania, for Amici Curiae Transgender Students and Allies.

Anthony Todaro, Jeffrey DeGroot, and Rachael Kessler,DLA Piper LLP (US), Seattle, Washington; Fatima Goss Graves, Emily Martin, Neena Chaudhry, and Sunu P. Chandy, National Women’s Law Center, Washington, D.C.; for Amicus Curiae National Women’s Law Center.

Wesley R. Powell, Mary Eaton, and Patricia O. Haynes, Willkie Farr & Gallagher LLP, New York, New York; Arthur L. Coleman, Education Counsel LLC, Washington, D.C.; for Amici Curiae National PTA, GLSEN, American School Counselor Association, and National Association of School Psychologists.

Devi M. Rao, Jenner & Block LLP, Washington, D.C.; Andrew G. Sullivan, Jenner & Block LLP, Los Angeles, California; for Amici Curiae American Academy of Pediatrics, American Medical Association, American Public Health Association, and 13 Other Medical, Mental Health, and Other Health Care Organizations.

John C. Dwyer, Maureen P. Alger, Sarah R. Binning, and Emily B. Harrington, Cooley LLP, Palo Alto, California; Kyle Wong, Cooley LLP, San Francisco, California; Shannon Minter, Amy Whelan, and Asaf Orr, National Center for Lesbian Rights, San Francisco, California; Shawn Meerkamper, Transgender Law Center, Oakland, California; for Amici Curiae PFLAG Inc., Trans Youth Equality Foundation, Gender Spectrum, Gender Diversity, and Transactive Gender Project.

Alice O’Brien, Eric A. Harrington, and Gypsy M. Moore, National Education Association, Washington, D.C., for Amicus Curiae National Education Association.

Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Jona J. Maukonen, Assistant Attorney-In-Charge; Office of the Attorney General, Salem, Oregon; for Amicus Curiae State of Oregon.

Cynthia Cook Robertson, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.; Tara L. Borelli, Lambda Legal Defense and Education Fund Inc., Atlanta, Georgia; Richard M. Segal and Nathaniel R. Smith, Pillsbury Winthrop Shaw Pittman LLP, San Diego, California; Robert C.K. Boyd and William C. Miller, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.; Peter C. Renn, Lambda Legal Defense and Education Fund Inc., Los Angeles, California; for Amici Curiae School Administrators from Thirty States and the District of Columbia.

George G. Gordon, Ryan M. Moore, and Thomas J. Miller, Dechert LLP, Philadelphia, Pennsylvania; Steven M. Freeman, Kimberley Plotnik, David Barkey, and Melissa Garlick, Anti-Defamation League, New York, New York; for Amici Curiae Anti-Defamation League; Americans United for Separation of Church and State; Bend the Arc Jewish Action; Central Pacific Conference of the United Church of Christ; Corvallis-area Lavender Women; Greater Seattle Business Association; Hadassah, The Women’s Zionist Organization of America, Inc.; Human Rights Campaign; Jewish Council for Public Affairs; Jewish Federation of Greater Portland; Keshet: For LGBTQ Equality in Jewish Life; National Center for Transgender Equality; National Center for Youth Law; National Council of Jewish Women; National Queer Asian Pacific Islander Alliance; OCA - Asian Pacific American Advocates; People For the American Way Foundation; Public Counsel; South Asian Americans Leading Together; Union for Reform Judaism; and Central Conference of American Rabbis.

Before: A. Wallace Tashima, Susan P. Graber, and John B. Owens, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

This case concerns whether an Oregon public school district may allow transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. Plaintiffs oppose the school district’s policy, asserting that it violates Title IX, as well as the constitutional rights—including the right to privacy, the parental right to direct the education and upbringing of one’s children, and the right to freely exercise one’s religion—of students and of parents of students in the school district. Defendants and many amici highlight the importance of the policy for creating a safe, non-discriminatory school environment for transgender students that avoids the detrimental physical and mental health effects that have been shown to result from transgender students’ exclusion from privacy facilities that match their gender identities.

It is clear that this case touches on deeply personal issues about which many have strong feelings and beliefs. Moreover, adolescence and the bodily and mental changes it brings can be difficult for students, making bodily exposure to other students in locker rooms a potential source of anxiety—and this is particularly true for transgender students who experience gender dysphoria. School districts face the difficult task of navigating varying student (and parent) beliefs and interests in order to foster a safe and productive learning environment, free from discrimination, that accommodates the needs of all students. At the outset, we note that it is not our role to pass judgment on the school district’s policy or on how the school district can best fulfill its duty as a public educational institution. We are asked only to resolve whether the school district’s policy violates Title IX or Plaintiffs’ constitutional rights.

In a thorough and well-reasoned opinion, the district court dismissed the federal causes of action against the school district for failure to state a claim upon which relief can be granted.¹ Parents for Privacy v. Dallas Sch. Dist. No. 2 , 326 F. Supp. 3d 1075 (D. Or. 2018). 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. 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. Accordingly, we affirm the district court’s dismissal with prejudice of the action.

I.

In September 2015, a student at Dallas High School who had been born and who remained biologically female publicly identified as a boy, and he asked school officials to allow him to use the boys’ bathroom and locker room.² Defendant-Appellee Dallas School District No. 2 (the "District") responded by creating and implementing a "Student Safety Plan" for the transgender boy ("Student A") and any other transgender student who might make a similar request in the future, in order to ensure that transgender persons like Student A could safely participate in school activities.

The Plan acknowledged Student A as a "transgender male" and permitted him to use the boys’ locker room and bathroom facilities with his peers at Dallas High School.³ The Plan also provided that, while Student A had not indicated "which bathroom he feels comfortable using," Student A could "use any of the bathrooms in the building to which he identifies sexually." In addition, to ensure Student A’s safety, the Student Safety Plan provided that all staff would receive training and instruction regarding Title IX, that teachers would teach about anti-bullying and harassment, that the Physical Education ("PE") teacher would be first to enter and last to leave the locker room, and that Student A’s locker would be in direct line of sight of the PE teacher in the coach’s office. The Student Safety Plan also listed several "Safe Adults" with whom Student A could share any concerns.

Student A began using the boys’ locker room and changing clothes "while male students were present." This caused several cisgender boys "embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress," because they had to change clothes for their PE class and attend to their needs while someone who had been assigned the...