This week, the U.S. Supreme Court declined to review a decision allowing transgender high school students to use bathrooms and locker rooms consistent with their gender identities. The High Court’s rebuff means the lower court decision stands. The tacit endorsement solidifies an understanding of Title IX supported by other courts, including the only other federal appellate court to address the question. The decision is also notable because of the new composition of the Court, with the addition of Justice Amy Coney Barrett. The case offered the Court an opportunity to quickly narrow the holding of the recent transgender employment decision, Bostock v. Clayton County. Yet, it did not do so.
In Parents for Privacy v. Barr, the petitioners were a group of parents, “Parents for Privacy.” The group challenged an Oregon school district’s policy allowing a transgender male student to use boys’ facilities at his high school. A trial court dismissed the case, finding that it did not state any valid claims. The Ninth Circuit Court of Appeals upheld the dismissal. The parent group then asked the Supreme Court to review the case.
In their request to the Supreme Court, Parents for Privacy raised numerous arguments about the school policy. They said the policy interfered with their rights to direct their children’s upbringing, infringed on their rights and their and children’s rights to free exercise of religion, and violated their children’s rights to bodily privacy. Finally, they claimed the policy created a hostile educational environment and discriminated based on sex under Title IX.
Here is the crux of the Title IX harassment claim: Requiring children to expose their bodies to or be exposed to the bodies of individuals assigned a different sex at birth creates a hostile environment based on sex. Justice Alito raised a similar concern in his dissent in Bostock. He said “it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex,” and warned that Title IX might be implicated in such a case. In this case, Parents for Privacy asked the Court to provide guidance to schools on the critical issue of whether designating facilities based on gender identity instead of sex assigned at birth is permissible under Bostock.
The Supreme Court does not typically explain why it declines to hear cases. The school district’s brief in opposition to the petition provides some insights, however. According to the school district, no cisgender students ever saw the transgender student undressing or using the bathroom or locker room, or vice versa. Plus, the parent group raised several arguments for the first time on its petition to the Court, which is not allowed under Court rules. It is unclear whether the Supreme Court would reach a different decision if facing evidence of exposure between cisgender and transgender students to which the cisgender students objected.
This case is yet another piece in the often confusing puzzle facing schools when it comes to transgender student rights under Title IX. The U.S. Department of Education Office of Civil Rights rescinded Obama-era guidance allowing transgender students to use bathrooms associated with their gender identity. OCR consistently has denied that Title IX applies to transgender students regarding facility access under the Trump administration. With the incoming Biden administration, we expect that the Department of Education’s guidance will realign with the trends in the courts, including those recognized in this situation. We will continue to monitor the case law and news of the presidential transition to keep you updated as the issue develops. If you have any questions, please contact a member of the Franczek Title IX Team.