ABOVE: SCOTUS, Washington Blade file photo by Michael Key.
The U.S. Supreme Court, despite having a 6-3 conservative majority, has rebuffed a request to review a legal challenge against an Oregon school district’s policy allowing transgender kids access to the bathrooms consistent with their gender identity.
In its orders list on Monday, the court — without any explanation — indicated it has rejected a petition for certiorari in Parents for Privacy v. Barr, which challenges the policy at Dallas School District No. 2, a public school district located in Pole County in western Oregon. It takes at least four justices to agree to take up case, but the vote on any petition isn’t publicly disclosed.
By rejecting the request for review from Parents Rights in Education, the Supreme Court lets stand a decision from the U.S. Ninth Circuit Court of Appeals upholding the policy within the district granting transgender students access to school bathrooms, locker rooms and other sex-segregated spaces in accordance with their gender identity.
In its petition filed before the Supreme Court in July, Parents Rights in Education entreated justices to take up the case to “untie a Gordian knot of conflicting constitutional and statutory rights” resulting from the school district’s policy.
“The district’s directive interferes with parents’ rights to direct the upbringing of their children, schoolchildren’s rights to bodily privacy, parents’ and children’s rights to free exercise of religion and children’s rights to be free from hostile educational environments under Title IX [of the Education Amendments of 1972],” the petition says.
Dallas School District No. 2 enacted the plan in 2018 in response to a request from a transgender male student who wanted to use the boys’ locker room. According to the petition filed by Parents Rights in Education, male students at the school “reported embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress produced by having to use these privacy facilities with a classmate of the opposite sex.”
Parents and students challenged the petition administratively within the school district, but the complaints were rejected and officials indicated challenges would be subject to disciplinary action and viewed as bigotry.
Andy Bellando, superintendent of the Dallas School District, said via email to the Washington Blade the Supreme Court’s decision to the reject the petition is consistent with the school’s policy.
“The mission of Dallas School District is to provide the highest quality education, ensuring every student develops the academic, functional, professional-technical, and social-emotional skills necessary to succeed in life,” Bellando said. “This most recent decision aligns with our mission.”
The Washington Blade has placed a request with Parents for Privacy seeking comment on the Supreme Court rejecting review of the case against the school.
In 2018, the American Civil Liberties Union and the ACLU of Oregon moved to intervene on behalf of Basic Rights Oregon, an LGBTQ group in the state, and filed a petition before the Supreme Court in October urging justices not to take the case.
Among other things, Basic Rights Oregon asserted the Supreme Court should reject the case because it is an abstract dispute, no circuit split exists on the issue among the federal appeals courts and Ninth Circuit was correct in upholding Dallas School District No. 2’s policy.
“The record reflects that only a single transgender student ever used facilities consistent with his gender identity at Dallas High School (identified here only as Student A) — and he graduated in 2018,” the filing says. “Plaintiffs challenge an individualized plan drawn up specifically for Student A, which has no continued application since his graduation. There is therefore no basis for prospective relief.”
The legal filing also rejects findings the school district’s policy violated the privacy of other kids, asserting based on the actual complaint “no student actually had to disrobe in the view of any other student.”
“Students could choose to change for gym or use the restroom in available stalls, or in separate single-occupancy facilities,” the filing says. “No compelled exposure of anyone’s body to anyone — transgender or otherwise — is alleged to have ever occurred.”
It’s not the first time the Supreme Court has rejected a challenge to a school district policy assuring transgender kids access to the sex-segregated facilities consistent with their gender identity. In May 2019, justices turned down a challenge to a similar policy in Boyertown Area School District in Pennsylvania.
Chase Strangio, deputy director for trans justice with the American Civil Liberties Union LGBT & HIV Project, praised the Supreme Court for signaling “transgender youth are not a threat to other students.”
“As we look toward state legislative sessions that will likely continue the attacks on trans youth, the decision not to take this case is an important and powerful message to trans and non-binary youth that they deserve to share space with and enjoy the benefits of school alongside their non-transgender peers,” Strangio added.
Barr is listed as a defendant in the case, along with Education Secretary Betsy DeVos, based on Obama-era guidance assuring transgender kids access to school restroom consistent with their gender identity under Title IX.
But the Trump administration had rescinded that guidance and the trial court dismissed the claim against the federal government for lack of standing, which Parents Rights in Education didn’t challenge before the Ninth Circuit.
In a filing before the Supreme Court, the Trump administration requested justices reject the petition with respect to the claims against the federal government, but clearly stated no position with regard to the challenge to the school district’s policy. It’s unclear whether naming Barr and DeVos as defendants in the case — or any of the other other claims in the other filings — played a role in the Supreme Court’s ultimate decision to reject the petition.
