Judge Says Parents Can Remove Their Children From School if They Don’t Like ‘Transgender’ Restroom Use Policy

PORTLAND, Ore. — A federal judge in Oregon has rejected a lawsuit filed by concerned parents who challenged a school district’s policy allowing those with gender dysphoria to use the restroom and locker room that aligns with their gender identity, stating that if parents object, they have a right to remove their child from school, but have no power over the policies once they choose to send them.

“Parent Plaintiffs seek to expand their right and exercise control over district’s decision-making authority embodied in the plan. It is within Parent Plaintiffs’ right to remove their children from Dallas High School if they disapprove of transgender student access
to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished,” wrote U.S. District Judge Marco Hernandez, appointed to the bench by then-President Barack Obama.

“Plaintiffs allege that they ‘have a fundamental right to determine whether and when their children will have to risk being exposed to opposite sex nudity at school, as well as a fundamental right to determine whether their children, while at school, will have to risk exposing their own undressed or partially unclothed bodies to members of the opposite sex,’” he noted, but pointed to the 2005 Ninth Circuit decision of Field v. Palmdale School district, which concluded that parents have a right to decide where to send their children to school, but not to direct how they are taught once they get there.

“Plaintiffs cite no case standing for the proposition that parents retain the right to prevent transgender students from sharing school facilities with their children,” Hernandez wrote. “As the Ninth Circuit explained in Fields, Parent Plaintiffs’ Fourteenth Amendment liberty interest in the education and upbringing of their children ‘does not extend beyond the threshold of the school door.’”

The coalition Parents for Privacy, which is comprised of current and former students and their parents, the group Parents’ Rights in Education, along with three individual plaintiffs, had filed a legal challenge against Dallas School District No. 2 and the Oregon Department of Education in November after the restroom policy was implemented.

According to reports, the policy was created to accommodate a female student who identifies as a boy, so that she would be able to use the boys’ locker rooms and restrooms. The student, who goes by the name Elliot Yoder, was a senior at the time and has since graduated.

“These students have the sincere religious belief that they must not undress, or use the restroom, in the presence of the opposite biological sex, and also that they must not be in the presence of the opposite biological sex while the opposite biological sex is undressing or using the restroom,” the legal challenge from the plaintiffs read.

They also stated that, as a result of the new policy, “biologically male and female students … have experienced, or may experience, embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity because they will have to use locker rooms, showers and restrooms with a student of the opposite sex.”

However, Judge Hernandez dismissed the groups’ religious liberty and right to privacy infringement claims, but instead ruled that not allowing students with gender dysphoria to use their preferred facilities would not only violate Title IX of the Education Amendments of 1972, but would also be “harmful” to “transgender” students.

“Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources. Such an injunction or district policy would punish transgender students for their gender non-conformity and constitute a form of sex stereotyping,” he wrote.

Read Hernandez’ ruling in full here.

It is not yet known whether the parents plan to appeal. However, Gary McCaleb, an attorney Alliance Defending Freedom, told the New York Times that “[t[he Oregon ruling treats sex as if it were determined by a person’s perception of their masculinity or femininity, rather than the objective fact that a person is either male or female.”

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