Transgender Equality in the Ninth Circuit: How the Court held in Parents for Privacy v. Barr, that transgender students are entitled to use school bathroom facilities associated with their gender identity.

By Sydney Finley. 

Brief Background on Transgender Discrimination in the U.S.

About 1.4 million transgender individuals live in the U.S., which is less than 1% of the total population. Despite these seemingly low numbers, however, transgender individuals face significant amounts of prejudice and discrimination, often starting in early education environments and continuing throughout their lives. The unfortunate stigma that continues to surround transgenderism and gender nonconformity can lead to significant mental health concerns and increased rates of suicide in transgender individuals (especially in transgender youth). Although progress often seems slight, federal courts over the last two decades have slowly and systematically begun to chip away at transgender discrimination. For example, numerous federal courts have held that national sex discrimination laws such as Title VII, Title IX, the Fair Housing Act, and the Equal Credit Opportunity Act apply to discrimination against transgender individuals. The Ninth Circuit’s recent opinion in Parents for Privacy v. Barris hopeful evidence that this trend towards transgender equality will continue.

Parents for Privacy v. Dallas Sch. Dist. No. 2: The District Court Decision

On November 11, 2017, the parents of several Oregon public high school students filed suit against the Dallas School District in the District Court for the District of Oregon. The parents alleged that the Dallas School District’s recently adopted Student Safety Plan, which accommodated transgender student requests to use school bathroom facilities associated with their gender identity, was unconstitutional. The parents alleged that the Student Safety Plan violated the civil rights of both the parents and non-transgender students under the Fourteenth Amendment’s right to parenting and privacy, Title IX’s ban on sex-based discrimination and harassment, and the First Amendment’s right to free exercise of religion. In a lengthy and carefully articulated opinion, the district court dismissed all of these causes of action against the Dallas School District, holding the parents failed to state a claim upon which any relief could be granted.

Parents for Privacy v. Barr: The Ninth Circuit Decision

On February 12, 2020, the Ninth Circuit emphatically upheld the dismissal. The Court first addressed the parents right to privacy claim under the Fourteenth Amendment. The Supreme Court, in Roe v. Wade, held that the Fourteenth Amendment’s mandate that states shall not “deprive any person of life, liberty, or property, without due process of law” includes a fundamental right to personal privacy. However, as the Ninth Circuit points out in its 55-page opinion, this privacy right has never been found to include a right to complete bodily privacy. Thus, the Court held that the Fourteenth Amendment’s right to privacy does not encompass the right of non-transgender individuals to avoid all risk of intimate exposure to transgender individuals whose sex assigned at birth is different from theirs.

Then, the Ninth Circuit addressed the parents’ right-to-parenting claim under the Fourteenth Amendment. In addition to a right to privacy, the Fourteenth Amendment also encompasses “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” The Court held that although the Fourteenth Amendment certainly provides parents the right to choose where their children attend school, it does not provide parents the right to determine the bathroom facility policies at those schools.

Additionally, the Ninth Circuit addressed the parents’ claim that the policy violates Title IX because it is discriminatory towards non-transgender students and creates a sexually harassing bathroom environment. Title IX provides that no person shall “on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The Ninth Circuit held that the policy is not discriminatory “on the basis of sex” under Title IX because it applies to all students equally. The Court further held that the policy cannot possibly constitute sexual harassment because transgender students are merely using the bathroom facilities as they were designed to be used.

Lastly, the Court addressed the parents’ claim that the policy violates the Free Exercise Clause of the First Amendment by forcing students to be exposed to an environment that conflicts with and prevents them from fully practicing their religious beliefs. The Ninth Circuit held that the policy does not violate the First Amendment’s right to the free exercise of religion because it is “rationally related” to a legitimate state purpose (providing for the comfort and safety of transgender students) and does not generally target religious conduct—it is a “neutral law” that burdens the exercise of religion only incidentally.

Ultimately, as did the District Court, the Ninth Circuit upheld the Dallas School District’s Student Safety Plan, which seeks to ensure the well-being and safety of transgender students in the Oregon public school system.

Supreme Court denial of Certand Potential Future Impacts of the Case

On December 7, 2020, the Supreme Court denied review of this case. Thus, the Ninth Circuit’s holding stands and will remain binding precedent throughout the Court’s jurisdiction. Hopefully, in the coming years, other circuits will look to this holding for guidance on the continued protection of transgender and gender nonconforming individuals.

"classroom 2nd fl" by cayoup is licensed under CC BY-NC-SA 2.0

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By Sydney Finley.

J.D. Candidate, 2022

Sydney Finley is a second-year law student at the Sandra Day O’Connor College of Law and a staff writer for the Arizona State Law Journal. She was born and raised in north Phoenix and earned her bachelor’s degree from the Daniels College of Business at the University of Denver. In her free time, Sydney enjoys hiking, watching football, skiing, and spending time with family and friends.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.