Pour one out for the Ma ‘n’ Pa Bigot, who just got their trans-bashing rear ends handed to them by the Ninth Circuit. Sorry, Snowflakes, there’s no Fourteenth Amendment privacy right for the Lil’ Bigots to ban transgender students from the locker room. Trans kids just going to school like normal kids — which they are — is neither sexual harassment, nor an infringement on the free exercise of religion. And if Princess and Junior Bigot are so wigged out that they refuse to use the restroom all day, well, that’s on them.
If you’ve ever attended a PTA meeting, you will recognize the plaintiffs in Parents for Privacy v. Barr. They’re the ones muttering loudly about the old days, before everyone got so darn PC and started demanding nut-free snacks. If you’ve ever attended a PTA meeting, you already hated these people before you found out that they sued over a Student Safety Plan because it might one day protect a transgender girl, since “several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom.”
As for the actual transgender boy going to school in the district, the “harm” suffered by other boys in the locker room was somewhat less than compelling.
Although privacy stalls were available in the bathrooms, these were insufficient to alleviate the cisgender boys’ fear of exposing themselves to Student A, because the stalls had gaps through which “partially unclothed bodies” could “inadvertently” be seen. And an available single-user bathroom was often inconvenient or was considered inferior because it lacked a shower.
As a parent of three teenagers myself, I can promise you that the last time any American kid showered after gym class was in 1988. They have about eight minutes to change and get back to math class, and anyway they’re perfectly happy to spray themselves with Axe and wallow in their own filth for hours on end.
But the Bigots had grievance theater to act out, and they weren’t wavering from the script. After they failed to bully the school out of adopting a plan to keep all students safe from Junior Bigot and his pals, the parents teamed up with anti-trans and anti-sex-ed groups to sue the school district, the state of Oregon, and the federal Department of Education alleging all manner of violations of their state and constitutional rights.
Plaintiffs sought an injunction forcing the district to require all students to use the bathroom corresponding to their gender as assigned at birth. But they were stymied by the district court, which dismissed the case for failure to state a legally cognizable claim. And they didn’t have any better luck yesterday at the Ninth Circuit. Womp womp!
It’s a fun opinion that’s definitely worth a read. But here’s the holding:
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.
God bless Judge Wallace Tashima, who knows a little something about separate but unequal.
Parents for Privacy v. Barr [No. 18-35708 (9th Cir. 2020)]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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