United States District Court, D. Oregon
PARENTS FOR PRIVACY; KRIS GOLLY and JON GOLLY, individually and as guardians ad litem for A.G.; LINDSAY GOLLY; NICOLE LILLIE; MELISSA GREGORY, individually and as guardian ad litem for T.F.; and PARENTS' RIGHTS IN EDUCATION, an Oregon nonprofit corporation, Plaintiffs,
DALLAS SCHOOL DISTRICT NO. 2; OREGON DEPARTMENT OF EDUCATION; GOVERNOR KATE BROWN, in her official capacity as the Superintendent of Public Instruction; and UNITED STATES DEPARTMENT OF EDUCATION; BETSY DEVOS, in her official capacity as United States Secretary of Education, as successor to JOHN B. KING, JR.; UNITED STATES DEPARTMENT OF JUSTICE; JEFF SESSIONS, in his official capacity as United States Attorney General, as successor to LORETTA F. LYNCH, Defendants.
Herbert G. Grey Ryan J. Adams Caleb S. Leonard Attorneys for
R. Mersereau Beth F. Plass Mersereau Shannon LLP Attorneys
for Defendant Dallas School District No. 2
A. Readler Billy J. Williams Carlotta P. Wells James O.
Bickford United States Department of Justice Attorneys for
Defendants United States Department of Education, Betsy
Devos, United States Department of Justice, and Jeff Sessions
M. Sands Lane Powell PC Mathew W. dos Santos Kelly Simon ACLU
Foundation of Oregon Gabriel Z. Arkles Shayna A.
Medley-Warsoff ACLU Foundation Attorneys for Defendant-
Intervenor Basic Rights Oregon
F. Rosenblum Sarah Weston Patricia Rincon Carla A. Scott
Oregon Department of Justice Attorneys for Amici Governor
Kate Brown and Oregon Department of Education
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Court must determine whether Oregon public schools may allow
transgender students to use restrooms, locker rooms, and
showers that match their gender identity rather than their
biological sex assigned at birth. Dallas High School, located
in Dallas, Oregon, and under the control of Defendant Dallas
School District No. 2 (“District”), adopted and
implemented the Student Safety Plan (“Plan”)
together with underlying policies allowing transgender
students to use restrooms, locker rooms, and showers that
match their gender identity. Plaintiff Parents for Privacy is
composed of current and former Dallas High School students
(“Student Plaintiffs”) and their parents
(“Parent Plaintiffs”). Plaintiff Lindsay Golly
formerly attended Dallas High School during the 2015-2016
school year while the Plan was in place. Compl. ¶ 16,
ECF 1. Plaintiffs Kris Golly and Jon Golly are her parents as
well as the parents of their son A.G., an eighth-grade
student who will soon attend Dallas High School. Compl.
¶ 16. Plaintiff Melissa Gregory is a parent of T.F., a
student at Dallas high school. Id. at ¶
challenge the legality of the plan, seek to enjoin District
from enforcing it, and request that the Court order District
to require students to only use the restrooms, locker rooms,
and showers that match their biological sex. Additionally,
Plaintiffs seek to enjoin the U.S. Department of Education
(“USDOE”), U.S. Department of Justice
(“USDOJ”), and their respective secretaries
(collectively “Federal Defendants”) from taking
any action based on USDOE's alleged rule redefining the
word “sex” as used in Title IX to include gender
identity. District and Federal Defendants have separately
filed motions to dismiss Plaintiffs' claims.
Basic Rights Oregon (“BRO”), a non-profit
organization dedicated to protecting the rights of
Oregon's LGBTQ community, filed a motion to intervene as
a defendant in this case. See Mot. to Intervene,
ECF. 24. The Court granted BRO's motion to intervene and
BRO filed its own motion to dismiss. See BRO's
Mot. to Dismiss, ECF 30.
the Oregon Department of Education (“ORDOE”) and
Governor Kate Brown (collectively “State”) were
originally named parties in this lawsuit. Upon the
parties' stipulation, Plaintiffs' claims against
those defendants were dismissed. See Stip. Notice of
Dismissal, ECF 11. State, however, moved to rejoin this
litigation as amicus curiae. See Mot. for Leave to
Appear as Amicus Curiae, ECF 50. The Court granted that
motion, and State filed its amicus brief in support of
District's Motion to Dismiss. See Amicus Br.,
ECF 50-1. In sum, there are three fully-briefed motions to
dismiss before the Court. For the reasons discussed below, the
motions are GRANTED and this case is DISMISSED.
bring the following eight claims for relief:
First Claim: (against Federal
Defendants) Violation of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 500 et seq.
Compl. ¶¶ 136-185.
Second Claim: (against District and
Federal Defendants) Violation of the Fundamental Right to
Privacy. Id. at ¶¶ 186-206.
Third Claim: (against District and
Federal Defendants) Violation of the Parents' Fundamental
Right to Direct the Education and Upbringing of Their
Children. Id. at ¶¶ 207-220.
Fourth Claim: (against District)
Violation of Title IX, 20 U.S.C. § 1681 et seq.
Id. at ¶¶ 221-247.
Fifth Claim: (against Federal
Defendants): Violation of the Religious Freedom Restoration
Act (“RFRA”), 42 U.S.C. § 2000bb et seq.
Id. at ¶¶ 248-255.
Sixth Claim: (against District and
Federal Defendants): Violation of the First Amendment's
Guarantee of Free Exercise of Religion. Id. at
Seventh Claim: (against District) Public
Accommodation Discrimination, Or. Rev. Stat.
(“O.R.S.”) §§ 659A.400, 659A.885.
Id. at ¶¶ 265-271.
Eighth Claim: (against District)
Discrimination in Education, O.R.S. 659.850. Id. at
and District conferred and consent to the dismissal of some
of Plaintiffs' claims. First, they agree that Plaintiff
Lindsay Golly should be dismissed because she does not have
standing. Second, the parties agree that Plaintiff Nicole
Lillie should be dismissed; while her name is in the case
caption, she is not included in any of the Complaint's
allegations. Third, Plaintiffs consent to the dismissal of
their request for compensatory damages as to Plaintiffs A.G.
and T.F. Furthermore, Plaintiffs concede that their third
claim for relief-violation of the right to direct the
education and upbringing of one's children-should be
dismissed to the extent that it is based on the
District's alleged liability for the LaCreole Middle
School special needs assessment. See Pl.'s Resp.
to District's Mot. to Dismiss 2, ECF 41.
preliminary matter, the Court finds it necessary to explain
its use of several relevant terms. In a recent decision, the
Third Circuit aptly summarized the same set of terms the
Court uses throughout this Opinion & Order. See Doe
v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL
3016864, at *1 (3d Cir. June 18, 2018). The Court adopts the
following definitions from the Third Circuit:
“Sex” is defined as the “anatomical and
physiological processes that lead to or denote male or
female.” Typically, sex is determined at birth based on
the appearance of external genitalia.
“Gender” is a “broader societal
construct” that encompasses how a “society
defines what male or female is within a certain cultural
context.” A person's gender identity is their
subjective, deep-core sense of self as being a particular
gender. . . . “[C]isgender” refers to a person
who identifies with the sex that person was determined to
have at birth. The term “transgender” refers to a
person whose gender identity does not align with the sex that
person was determined to have at birth. A transgender boy is
therefore a person who has a lasting, persistent male gender
identity, though that person's sex was determined to be
female at birth. A transgender girl is a person who has a
lasting, persistent female gender identity though that
person's sex was determined to be male at birth.
Id. (citations omitted).
Dallas School District and the Student Safety Plan
High School is located in Dallas, Oregon in Polk County.
Compl. ¶ 19. Student A was a twelfth grade student at
Dallas High School. Id. at ¶ 76. Student A was
born and remains biologically female. Id. at ¶
77. Before September 2015, Student A used the girls'
restrooms, locker rooms, and showers (collectively
“facilities”). Id. at ¶ 77. In
September 2015, Student A publicly identified as a boy and
asked District to allow him to use the boys' facilities.
Id. at ¶ 78-79.
November 2015, District responded to Student A's request
by implementing the Student Safety Plan entitled
“Transgender Student Access to Locker Room.”
Compl. Ex. A, at 1. The Plan permits Student A to use Dallas
High School's locker rooms, restrooms, and showers
consistent with his gender identity. Compl. ¶ 75, Ex. A,
at 1. The preamble to the Plan states:
All students have rights for attendance at public schools,
and we have to follow the laws which protect those
students['] rights. This safety plan has been created to
support a transgender male expressing the right to access the
boy's locker room at Dallas High School. Following are
targeted areas of concern and the procedures or actions aimed
to support all students in this transition.
Compl. Ex. A, at 1. At that time, Student A had not expressed
which bathroom he felt comfortable using. Id. at
¶ 79. Accordingly, the Plan states that Student A
“can use any of the bathrooms in the building to which
he identifies sexually.” Compl. Ex. A, at 2.
the Plan, as referred to by the parties, also encompasses
several previously established District policies. Compl. Exs.
B-G. District's nondiscrimination policy provides that
District “prohibits discrimination and harassment on
any basis protected by law, including . . . an
individual[']s perceived or actual . . . sex” or
“sexual orientation.” Compl. Ex. B, at 1. Sexual
orientation under the policy “means an individual's
actual or perceived . . . gender identity, regardless of
whether the individual's gender identity, appearance,
expression or behavior differs from that traditionally
associated with the individual's sex at birth.”
Id. Likewise, District has a policy entitled
“Equal Education Opportunity” providing that
“[e]very student of the district will be given equal
educational opportunities regardless of . . . sex” or
“sexual orientation.” Compl. Ex. C. The policy
Further, no student will be excluded from participating in,
denied the benefits of, or subjected to discrimination under
any educational program or activity conducted by the
district. The district will treat its students without
discrimination on the basis of sex as this pertains to course
offerings, athletics, counseling, employment assistance and
accordance with the Plan, Student A used the boys' locker
rooms, showers, and restrooms at Dallas High school. Compl.
¶ 79. Other male students, including Student Plaintiffs,
have used school facilities at the same time as Student A.
Id. at ¶ 79. Specifically, Student A has used
the boys' locker room and showers and has changed clothes
while male students were present. Id. at ¶ 82.
Plaintiffs allege that male students at Dallas High school
experience “embarrassment, humiliation, anxiety,
intimidation, fear, apprehension, and stress produced by
using the restroom with students of the opposite
sex[.]”Id. at ¶ 83. The alleged risks
posed to those students persist despite the presence of
privacy stalls in the bathrooms because “there are
large gaps above and below the stall doors, and gaps along
the sides of the doors” through which “another
student could see through even inadvertently.”
Id. Therefore, Plaintiffs maintain that Student
Plaintiffs “must risk exposing themselves to the
opposite sex every time they use the restroom.”
Id. at ¶ 83. Consequently, Student Plaintiffs
and other students use the restroom as little as possible and
“risk tardiness by hurrying to distant facilities of
the school, during short 5-minute passing periods, to try and
find a restroom not likely to be used by a student of the
opposite biological sex.” Id. at ¶ 85.
and Parent Plaintiffs expressed their concerns about the Plan
to Dallas High School's principal who informed them that
all facilities may be used by any student regardless of
biological sex. Id. at ¶ 87. The principal also
told Parent Plaintiffs that their students could use the
unisex staff lounge which has no shower. Id. at
¶ 91. Dallas School Board meetings were held on December
14, 2015, January 19, 2016, and February 11, 2016.
Id. at ¶ 93. At those meetings, District
supported the Plan over Plaintiffs' objections and those
of other parents and students. Id.
Federal Defendants' Administrative Actions
allege that Federal Defendants have exercised their authority
to promulgate, administer, and enforce a new legislative rule
redefining “sex” within the meaning of Title IX
to include gender identity and prohibiting school districts
from providing sex-specific facilities. Id. at
¶¶ 26-30, 32-39, 49-73. Federal Defendants' new
legislative rule (“Rule”) as alleged in the
Complaint is composed of a series of Federal Guidelines
promulgated between April 2014 and May 2016, including:
• USDOE, Office for Civil Rights, Questions and
Answers on Title IX and Sexual Violence (Apr. 2014).
Compl. Ex. H [hereinafter “Q&A on Sexual
• USDOE, Office for Civil Rights, Questions and
Answers on Title IX and Single-Sex Elementary and Secondary
Classes and Extracurricular Activities, (Dec. 2014).
Compl. Ex. I [hereinafter “Q&A on Single-Sex
• USDOE, Office of Civil Rights, Title IX Resource
Guide. (Apr. 2015). Compl. Ex. J.
• USDOJ, Civil Rights Division, USDOE, Office for Civil
Rights, Dear Colleague Letter on Transgender
Students (May 13, 2016). Compl. Ex. K [hereinafter
“May 2016 Dear Colleague Letter”].
in April 2014, USDOE published the Q&A on Sexual Violence
which provides: “Title IX's sex discrimination
prohibition extends to claims of discrimination based on
gender identity or failure to conform to stereotypical
notions of masculinity or femininity[.]” Compl. Ex. H
at 12. That guidance was withdrawn in September 2017, before
this lawsuit was filed. See U.S. Dep't of Educ.,
Office for Civil Rights, Dear Colleague Letter (Sept. 22,
in December 2014, USDOE published the Q&A on Single-Sex
Classes, providing that:
All students, including transgender students and students who
do not conform to sex stereotypes are protected from
sex-based discrimination under Title IX. Under Title IX, a
recipient generally must treat transgender students
consistent with their gender identity in all aspects of
planning, implementation, enrollment, operation, and
evaluation of single-sex classes.
Compl. Ex. I, at 30.
in April 2015, USDOE published the Title IX Resource Guide
which reiterates that Title IX's prohibition of sex
discrimination includes gender identity. Compl. Ex. J, at 5.
Specifically, the prohibition extends to claims of
discrimination based on gender identity or failure to conform
to stereotypical notions of masculinity or femininity.
Id. at 5-6. “Similarly, the actual or
perceived sexual orientation or gender identity of the
parties does not change a recipient's obligations.”
Id. at 21.
fourth challenged document is the May 2016 Dear Colleague
Letter jointly issued by the USDOJ and USDOE. Compl. Ex. K.
The May 2016 Dear Colleague Letter repeated that Title
IX's sex-discrimination prohibition “encompasses
discrimination based on a student's gender identity,
including discrimination based on a student's transgender
status.” Id. at 2. Federal Defendants
characterized this letter as “significant
guidance” that “does not add requirements to
applicable law, but provides information and examples to
inform recipients about how the Departments evaluate whether
covered entities are complying with their legal
obligations.” Id. at 2. Most importantly, this
document provides specific guidance on transgender
students' access to sex-segregated activities and
Sex-Segregated Activities and Facilities
Title IX's implementing regulations permit a school to
provide sex-segregated restrooms, locker rooms, shower
facilities, housing, and athletic teams, as well as
single-sex classes under certain circumstances. When a school
provides sex-segregated activities and facilities,
transgender students must be allowed to participate in such
activities and access such facilities consistent with their
Restrooms and Locker Rooms. A school may
provide separate facilities on the basis of sex, but must
allow transgender students access to such facilities
consistent with their gender identity. A school may not
require transgender students to use facilities inconsistent
with their gender identity or to use individual-user
facilities when other students are not required to do so. A
school may, however, make individual-user options available
to all students who voluntarily seek additional privacy.
Athletics. Title IX regulations permit a
school to operate or sponsor sex-segregated athletics teams
when selection for such teams is based upon competitive skill
or when the activity involved is a contact sport. A school
may not, however, adopt or adhere to requirements that rely
on overly broad generalizations or stereotypes about the
differences between transgender students and other students
of the same sex (i.e., the same gender identity) or
others' discomfort with transgender students. Title IX
does not prohibit age-appropriate, tailored requirements
based on sound, current, and research-based medical knowledge
about the impact of the students' participation on the
competitive fairness or physical safety of the sport.
Id. at 4.
February 22, 2017, the USDOJ and USDOE published a second
dear colleague letter withdrawing the guidance provided in
their May 2016 Dear Colleague Letter. See U.S.
Dep'ts of Educ. & Justice, Dear Colleague Letter
(Feb. 22, 2017),
[hereinafter “February 2017 Dear Colleague
Letter”]. The February 2017 Dear Colleague Letter
began: “The purpose of this guidance is to inform you
that the Department of Justice and the Department of
Education are withdrawing the statements of policy and
guidance reflected” in the May 2016 Dear Colleague
Letter. Id. The letter explained that prior
guidance's interpretation of “on the basis of
sex” in Title IX to include gender identity has
“given rise to significant litigation regarding school
restrooms and locker rooms.” Id.
February 2017 Dear Colleague Letter did not state that the
prior guidance was unlawful, nor did Federal Defendants
replace the prior guidance with new guidance. Rather, the
letter stated that, in light of litigation on the issue
producing differing results, “there must be due regard
for the primary role of the States and local school districts
in establishing education policy.” Id.
“In these circumstances, the [USDOE and USDOJ] have
decided to withdraw and rescind the above-reference guidance
documents in order to further and more completely consider
the legal issues involved. The Departments thus will not rely
on the views expressed within them.” Id.;
see also Compl. Ex. N (USDOE instructions to field
offices stating that in light of the February 2017 Dear
Colleague Letter and other litigation developments, the USDOE
should not rely on the May 2016 Dear Colleague letter when
analyzing Title IX discrimination claims).
motion to dismiss, the court must review the sufficiency of
the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). A complaint is construed in favor of the plaintiff,
and its factual allegations are taken as true.
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d
992, 998 (9th Cir. 2010). “[F]or a complaint to survive
a motion to dismiss, the non-conclusory factual content, and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Moss v. United States Secret Serv.,
572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[O]nce a claim
has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 563 (2007). The court, however, need “not
assume the truth of legal conclusions merely because they are
cast in the form of factual allegations.” Id.
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do . . . .” Id. at 555.
outlined above, Plaintiffs allege eight claims for relief
which the Court has grouped together as follows: (I) APA;
(II) the right to privacy; (III) Title IX; (IV) Oregon state
law; (V) parents' rights to direct the education and
upbringing of their children; and (VI) First Amendment and
RFRA. The Court will discuss each topic in turn.
first claim for relief alleges that Federal Defendants
violated by the APA through promulgating and enforcing
“a new legislative rule that redefines the term
‘sex' in Title IX and its accompanying regulations
to mean, or at least include, ‘gender
identity.'” Compl. ¶ 137. They argue that the
May 2016 Dear Colleague Letter demonstrates that Federal
Defendants will investigate and enforce Title IX against
school districts that do not permit transgender students to
use restrooms, locker rooms and showers consistent with their
gender identity. Id. at ¶¶ 140-41.
Plaintiffs contend that Federal Defendants'
administrative actions are in excess of legal authority,
arbitrary and capricious, contrary to the U.S. Constitution,
and done without observance of required administrative
procedures. Id. at ¶ 145 (citing 5 U.S.C.
response, Federal Defendants move to dismiss Plaintiffs'
APA claim on the ground that Plaintiffs lack standing. Two of
the four guidance documents that comprise the challenged Rule
were withdrawn before this lawsuit commenced. Federal
Defendants claim that Plaintiffs cannot show that they
suffered any injury as a result of the Rule or that
Plaintiffs' alleged injuries would be redressed by the
relief that they seek from Federal Defendants. The May 2016
Dear Colleague Letter-the only guidance specifically
addressing transgender students' use of school
facilities-was expressly withdrawn by the February 2017 Dear
Colleague Letter. Federal Defendants point to District's
Plan as the sole source of Plaintiffs' alleged injuries.
In other words, withdrawal of Federal Defendants' Rule
would neither compel District to rescind its Plan nor require
students at Dallas High School to use facilities matching
their biological sex.
Article III standing, a plaintiff must show that, (1) it
suffered an “injury in fact, ” (2) arising out of
the defendant's conduct, and (3) “it must be
‘likely,' as opposed to ‘speculative,'
that the injury will be redressed by a favorable
decision.” Lujan v. Defs. of Wildlife, 504
U.S. 555, 560-61 (1992) (citations omitted).
allege that they have “suffered a legal wrong as a
direct result of USDOE's actions, because Plaintiffs'
constitutional and statutory rights were and continue to be
violated by the Student Safety Plan, which is the direct
result of USDOE's enforcement of its new rule.”
Compl. ¶ 144. Federal Defendants do not challenge the
injury requirement for standing. Instead, they argue that the
alleged injury is solely attributable to District's Plan
and that Plaintiffs are unable to establish either causation
or redressability. As discussed below, however, the Court
finds that Plaintiffs have not plausibly alleged their
remaining claims based on District's Plan. Accordingly,
because those dismissed claims form ...