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Parents for Privacy v. Dallas School District No. 2

United States District Court, D. Oregon

July 24, 2018

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 Plaintiffs

          Peter R. Mersereau Beth F. Plass Mersereau Shannon LLP Attorneys for Defendant Dallas School District No. 2

          Chad 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

          Darin 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

          Ellen 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


         The 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 ¶ 17.[1]

         Plaintiffs 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.

         Moreover, 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.

         Lastly, 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.[2] For the reasons discussed below, the motions are GRANTED and this case is DISMISSED.

         Plaintiffs 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 ¶¶ 256-264.
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 ¶¶ 272-277.

         Plaintiffs 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.


         I. Definitions

         As a 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).

         II. Dallas School District and the Student Safety Plan

         Dallas 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[4] to use the boys' facilities. Id. at ¶ 78-79.

         In 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.

         Furthermore, 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 explains:

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 extracurricular activities.


         In 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.

         Student 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.[5]

         II. Federal Defendants' Administrative Actions

         Plaintiffs 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 Violence”].
• 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 Activities”].
• 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”].

         First, 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, 2017),

         Second, 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.

         Third, 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.

         The 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 facilities:

         3. 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 gender identity.
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.

         On 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.

         The 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).


         On a 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.


         As 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.

         I. APA

         Plaintiffs' 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. § 706(2)(A)-(D)).

         In 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.

         To have 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).

         A. Injury

         Plaintiffs 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 ...

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