Oregon Parents Sue School District Over Transgender Bathrooms, Claiming Civil Rights Violations

A group of parents and citizens in the small town of Dallas, Oregon, in conjunction with both a local and statewide parental rights groups, has filed a lawsuit against a Dallas School District, among others, over a rule mandating that students may use school restrooms, locker rooms, and showers based on their self-identified gender identity.

Defendants included in the complaint are Dallas School District No. 2, the Oregon Department of Education, and Oregon Governor Kate Brown, in her capacity as superintendent of Public Schools. Also named in their official capacities are Secretary of Education Betsy DeVos and Attorney General Jeff Sessions, along with their respective agencies.

Dallas residents have organized locally under the designation Parents for Privacy and have joined with the influential state nonprofit Parents Rights in Education as plaintiffs. The plaintiffs say they are not unsympathetic to accommodating transgender students, but believe that the privacy, dignity and safety of everyone must be respected in making any accommodations.

The action, like many similar complaints around the country, is in response to changes made to the Title IX definition of what constitutes a person’s “sex” made during President Barack Obama’s administration.  The original definition, codified in the 1972 amendment aimed at protecting the rights of women and girls in federally-funded education was clear: sexual differences are binary, i.e. a person is biologically either male or female. The legislative history, based on testimony before Congress at the time Title IX was adopted, overwhelmingly confirmed that intent.

The United States Department of Education, then under the direction of John B. King Jr., unilaterally changed the definition of gender to include and protect an individual’s nonbinary choice, meaning that a person must be afforded rights based on whichever sex he or she decides to identify as. The United States Department of Education, backed up by the United States Department of Justice under Loretta Lynch, threatened to withhold federal Title IX funds to any entity that did not follow the new federal guidelines.

In the comprehensive 65-page complaint,  Oregon counsel Herb Grey and  Ryan Adams challenge these unauthorized changes made to Title IX, and argue that in doing so the federal agencies were guilty of unlawful and unconstitutional federal overreach in at least two ways:

  1. They did not engage in formal rulemaking under which government agencies give notice of and receive comments about proposed new regulations, and
  2. They unilaterally changed the long-standing interpretation of “sex” under Title IX without any congressional or judicial authority.

Turning from the national consequences of the changes to the situation in Dallas, the complaint details how, under the district’s “Student Safety Plan,” a simple choice by a student to identify as one sex or another allows that student to use the restrooms, locker rooms, and shower areas with members of the opposite sex. Precipitating the suit is “Student A,” a biological female who identifies as male and has opted since the guidelines were implemented locally to use the restrooms and shower facilities with her biologically male counterparts.

From the complaint: “Student A has utilized the boy’s locker room and shower facilities on numerous occasions from November 15, 2015 to the present, and has changed clothes while male students were present.”

Although there has not as yet been a biologically male student who identifies as female in the Dallas district, the complaint anticipates such a development:

Girl Plaintiffs object to being forced to use a locker room, shower, or restroom with any biological male student as the Student Safety Plan mandates when a biological male student informs the DISTRICT of his new gender as female.

Extrapolating from the specific to the general, the complaint outlines how ramifications of the new federal guidelines may impact not just Dallas students but any student body under the jurisdiction of the guidelines:

The ability to be clothed in the presence of the opposite biological sex, along with the freedom to use the restroom, locker room, and shower away from the presence of the opposite biological sex is fundamental to most people’s sense of self-respect and personal dignity, including plaintiffs, who should be free from State-compelled risk of exposure of their bodies or their intimate activities.

Students discomfited with this state of affairs have met resistance while attempting to voice their concerns:

Students at Dallas High School have expressed their discomfort with the accommodations provided for Student A and attempted to circulate a petition objecting to such accommodations. However, Principal Steve Spencer confiscated the petitions being circulated and ordered students circulating them to discontinue doing so or face disciplinary actions.

The complaint also expounds upon salient issues like the constitutional expectation of privacy, and the rights of parents to bring children up in accordance with their own morality and religious beliefs, which include a faith-based proscription against disrobing in the presence of the opposite sex in a public setting.

Also included are data and statistics on sexual abuse and assaults on females, and arguments about the implications thereof regarding the psychological well-being of victimized females when subjected to proximity to members of the opposite sex when disrobing or attending to the most private bodily functions.

The irony here, as elaborated in the complaint, is that the changes to Title IX— originally an amendment to the 1965 Higher Education Act aimed at protecting the constitutional rights of women and girls—has been reinterpreted and transmogrified to impose an allegedly unconstitutional mandate on the vast majority of American citizens. It should also be remembered that anyone coming to public school facilities – including parents and other members of the public — for school events or other purposes will encounter the same unsegregated facilities.

The case is still in the very early stages, and Mr. Grey says it will be some time before there will be any substantive decisions made in the case, which was filed in the U.S. District Court in Portland and will be heard before the Honorable Marco Hernandez. According to Mr. Grey, while the Dallas School District may claim they took action because state and federal officials “forced” it to, it is still required to comply with protections in the Oregon and U.S. Constitutions. There is also the significant issue of whether Oregon’s civil rights laws require such action in the face of U.S. constitutional liberties. To date, there have been no controlling decisions made by any state or federal court that definitively define the rights of the parties in these matters.

The lawsuit seeks to protect the privacy, dignity and safety of all students and to restore common sense in maintaining sex-segregated facilities, as most people reasonably expect in public spaces – especially where children are involved — and use common sense in making other accommodations for transgender students. The intention is to uphold the well-established understanding of Title IX and require either congressional action or appropriate rulemaking (with mandatory notice and comment periods) before forcing these changes on an unsuspecting public. It is widely expected that these issues will have to be resolved at the U.S. Supreme Court, which so far has declined to hear any similar case brought before it.