A. Wallace Tashima of the U.S. Court of Appeals for the Ninth Circuit.

A federal appeals court ruled that an Oregon school district's decision to allow a transgender student to use facilities that match with his gender identity does not constitute sexual harassment or violate students and parents' privacy rights. 

A panel for the U.S. Court of Appeals for the Ninth Circuit on Wednesday affirmed a lower court's dismissal of claims that Dallas School District No. 2 in Western Oregon violated the Title IX and constitutional rights of a coalition of district guardians called Parents for Privacy via the student safety plan the school outlined for a trans boy.

In the opinion, written by Ninth Circuit Judge A. Wallace Tashima and joined by Judges Susan Graber and John Owens, the panel noted that it was not their role to pass judgment on the school district's guidelines for accommodating a trans student, but instead, focused on the claims.

 "A policy that allows transgender students to use school bathroom and locker facilities that match their self-identified gender in the same manner that cisgender students utilize those facilities does not infringe Fourteenth Amendment privacy or parental rights or First Amendment free exercise rights, nor does it create actionable sex harassment under Title IX," Tashima wrote.

The district court ruled that the 14th Amendment's right to bodily privacy "does not provide high school students with a constitutional privacy right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs." 

Mersereau Shannon's Blake Fry and Peter Mersereau in Portland, Oregon, represented the district. Fry did not respond to a request for comment, and Mersereau was out of the office Wednesday afternoon.

On appeal, Parents for Privacy cited a Ninth Circuit case, Angelynn York v. Story, where police officers asked a woman who sought their help after an alleged assault to undress and took nude photos of her that they distributed throughout the station. Unlike York, Tashima said, the transgender students are not taking nude photos of their peers or purposefully invading their privacy. The judges were also unconvinced by several out-of-circuit cases that said the 14th Amendment protects "privacy interest in [a person's] partially clothed body."

"In sum, plaintiffs fail to show that the contours of the privacy right protected by the Fourteenth Amendment are so broad as to protect against the district's implementation of the Student Safety Plan," the judge wrote. "This conclusion is supported by the fact that the Student Safety Plan provides alternative options and privacy protections to those who do not want to share facilities with a transgender student, even though those alternative options admittedly appear inferior and less convenient."

Although plaintiffs brought Title IX claims arguing the school turned bathrooms and locker rooms into sexually harassing environments, the judges decided that "just because Title IX authorizes sex-segregated facilities does not mean they are required, let alone that they must be segregated based only on biological sex and cannot accommodate gender identity."

The Student Safety Plan actually treats students the same regardless of their gender, the judges wrote. 

"Plaintiffs allegedly feel harassed by the mere presence of transgender students in locker and bathroom facilities. This cannot be enough. The use of facilities for their intended purpose, without more, does not constitute an act of harassment simply because a person is transgender," the opinion asserts.

Solo practitioner Herbert Grey of Beaverton, Oregon, represented the appellants in the case alongside J. Ryan Adams of Tyler Smith & Associates in Canby, Oregon. Grey said his clients are disappointed in the outcome of the case.

"The Ninth Circuit panel expressly acknowledged that most adolescents are anxious about exposing their bodies, and the Student Safety Plan requires all other students who object to being in intimate spaces with someone of the opposite sex to avail themselves of alternatives that 'appear[s] inferior and less convenient,'" he said in an email. "Nonetheless, they put the interests of one student who had already been accommodated ahead of the privacy, dignity and safety of everyone at the school, and they further diminished the well-established constitutional rights of parents to exercise primary responsibility for the education, welfare and upbringing of their children."

The American Civil Liberties Union in New York and Oregon intervened in the case on behalf of the district, and it also received amicus support from groups including Transgender Students and Allies in Pittsburgh represented by Cozen O'Connor; National Women's Law Center represented by DLA Piper; National PTA and National Association of School Psychologists represented by Willkie Farr & Gallagher; American Medical Association represented by Jenner & Block; and dozens of other groups including those represented by Cooley, Pillsbury Winthrop Shaw Pittman, and Dechert. 

"As [National Women's Law Center] and the 50 organizations that joined us in filing an amicus brief, alongside our law firm partner, DLA Piper, described to the court, allowing transgender students to use bathroom facilities that correspond to their gender identity does not put anyone else at risk," said a spokesperson for the group. "However, excluding transgender students from bathrooms that correspond with their gender identities can cause both physical and emotional harm to transgender students, who are already more likely to suffer bullying and harassment—and is a form of sex-based discrimination."

Wes Powell of Willkie Farr & Gallagher said his team is pleased with the decision, which follows similar rulings from a number of other Courts of Appeal.

"As we argued in our brief,  both research and educators' on-the-ground experience teaches that when schools implement inclusive policies that grant transgender students access to the restroom or locker room aligned with their gender identity, transgender students' rights are validated and they are able to thrive in school, without compromising the educational experience of other students," Powell said.

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