By Maxine Bernstein

The Oregonian

A group of parents who oppose the Dallas School District’s policy of allowing transgender students to use restrooms and locker rooms that correspond to their gender identity will ask a federal appeals court Thursday to revive its lawsuit.

U.S. District Judge Marco A. Hernandez a year ago threw out the suit, finding the school district policy didn’t violate the privacy rights of other students who object to sharing the spaces.

Parents for Privacy —about half a dozen parents of current and former Dallas students — contend Hernandez failed to recognize that allowing students of one sex “to access the privacy facilities of the opposite sex violates the Fourteenth Amendment right to bodily privacy.”

The parents contend the policy violates Title IX by turning locker rooms and restrooms into “sexually harassing environments” and forcing other students to not use them to avoid potential harassment. Title IX prohibits sex discrimination in any federally-funded education program or activity.

“The issues on appeal all turn on whether persons of the opposite sex may invade privacy areas traditionally reserved for a single sex,” the group’s attorneys, Herbert G. Grey of Beaverton and Ryan Adams of Canby, wrote to the 9th U.S. Circuit Court of Appeals.

Lawyers from the American Civil Liberties Union of Oregon and the LGBTQ advocacy group Basic Rights Oregon will attend oral arguments at Pioneer Courthouse, hoping to convince the appeals panel to affirm Hernandez’s ruling.

They argued in legal briefs that not allowing transgender students to use the restrooms or locker rooms aligned with their gender identities would be discriminatory. Any students concerned about their privacy could change in individual toilet stalls in the locker rooms if desired, they noted.

“No student is required to undress in the presence of any other student. What appellants actually seek is recognition of a novel right to exclude transgender people from common areas of restrooms and locker rooms. Such a right has been rejected by every court that has considered the issue and has no basis in any recognized privacy right,” attorneys Peter D. Hawkes and Darin M. Sands wrote on behalf of Basic Rights Oregon.

Gabriel Arkles, ACLU staff attorney, said the Oregon case is part of a “nationwide trend targeting transgender young people and we are proud to defend students’ safety, dignity, and access to education.”

In his ruling, Hernandez said parents of students who object to the school district’s policy are free to pull their children from the school.

“It is within (their) right to remove their children from Dallas High School if they disapprove of transgender student access to facilities,” Hernandez wrote in a 56-page opinion. Dallas is 15 miles west of Salem.

The judge said the right of transgender students to be free of discrimination in school is outlined in Oregon law.

Parents for Privacy lawyers say Hernandez used faulty logic and failed to consider an alternative, having transgender students use “single-user” restrooms.

“One can only imagine the reaction if someone suggested that LGBTQ or other minority students unhappy with their educational environment can simply go elsewhere,” they wrote.

“If all students were given the choice to access individualized facilities, no stigma would attach to a self-identifying transgender student (or any other student) using them, and everyone’s privacy would be preserved.”

The parents group filed the lawsuit in November against the school district, the Oregon Department of Education and the U.S. Department of Education.

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