Oregon schools risk lawsuits over transgender kids and bathrooms, lawyers warn
In the months since Dallas School District leaders agreed to allow a transgender student to use the boys bathroom, parents in the rural Oregon community have prayed and protested.
Tuesday night, in front of a crowd of 250, the school board invited lawyers to explain publicly. What would happen, board members asked, if they barred transgender students from using the bathrooms they want to use?
You will be sued, lawyers from Salem-based Garrett Hemann Robertson said, as a district and perhaps as individuals. You will spend six figures fighting it — hundreds of thousands of dollars that should be spent in classrooms.
And you will lose.
“There is real liability,” said attorney Paul Dakopolos, “in not following the law.”
Districts across the country, including many in Oregon, have wrestled over decisions about which locker rooms and lavatories transgender students should use. Oregon Department of Education officials plan to issue rules on the issue next month. In Dallas, a town of 15,000 30 minutes west of Salem, the debate began last fall when a transgender student asked to use the boys locker room.
District administrators spent “countless hours,” board chair Lu Ann Meyer said Tuesday night, calling lawyers and other districts. Lawyers told Dallas board members that enforcement of federal Title IX regulations had changed “significantly” in recent years: The law passed in 1972 to ensure women had equal access to education now protects transgender students from discrimination.
Dallas administrators agreed to let the 14-year-old freshman begin using the boys locker room in November.
Parents and students packed a December meeting to complain. Students signed petitions protesting the policy. A few asked to be removed from the transgender student’s PE class. Parents met for prayer sessions, asking God to help board members change their mind. They did their own research, reading court decisions from across the country about transgender students. The law didn’t seem so clear to them.
It’s true, Dakopolos said Tuesday night, that courts have issued conflicting verdicts. In Virginia, a U.S. District Court district court judge ruled that a transgender teenager did not have the right to file an injunction under Title IX.
“I think it’s important as we throw around case law tonight to remember that we’re in Oregon,” Dakopolos said. “Oregon law is different than a lot of the states that have reached these decisions. We’re in the 9th Circuit. That circuit is headquartered in San Francisco. It’s known as a more liberal federal circuit. That’s just the reality in which we live.”
Kelly Noor, an attorney who works with Dakopolos, said that while no Oregon court has addressed transgender student rights, her firm believes federal and state laws would protect those students. And the U.S. Department of Education’s Office of Civil Rights set a precedent in November when it ruled that an Illinois school district violated Title IX when administrators prevented a transgender female from using the girls’ facilities.
Parents, in questions they submitted Tuesday via note cards, asked the lawyers why a transgender student’s rights trumps their religious rights. They don’t, the attorneys explained. The district has to respect the rights of all students.
If a student objects to sharing a locker room with a transgender student, Dallas High School administrators allow those students to undress somewhere else. The principal can also change a student’s schedule so he takes PE during a different period.
Still, parents yelled from the audience that they feared their kids would not be safe.
“Can you guarantee,” one wrote, “that my seventh-grade daughter is safe to change and shower in a girls locker room while a grown man who claims to be a transgender decides to use the same locker room at the same time?”
Dallas High principal Steve Spencer said he had hired a new staff member to supervise the girls locker room.
The Dallas School Board could listen to parents and decide to challenge the federal Department of Education, Dakopolos said, by not allowing transgender students to use the bathroom they prefer.
“Then get sued,” Dakopolos said. “You can challenge them in court. You’d probably lose that fight. If someone doesn’t sue you, you can tell (the federal department’s Office of Civil Rights) that you’re not going to follow their rules. Then you can get involved in an OCR complaint, and you can go through an investigation. You won’t win that either. Their rules are the rules. They’re not going to change them because you disagree with them.”
When a school board breaks “known law” to discriminate against a student, Dakopolos said, individual board members can also be held personally liable. If they refused to admit students of color, for instance, parents could sue each board member individually. The rights of transgender students aren’t as well established as those of ethnic minorities, Dakopolos said, but that liability could come to pass.
Of course, Dallas parents who object to the policy could always opt to sue the district, too.
“All you need is about a $500 filing fee,” Dakopolos said. “I suppose here the claim would be that the school district, by following what we understand to be the law, violates the privacy rights of students by making them uncomfortable in being in a locker room or the restroom. I think that’s a largely untested right in Oregon. We’ve seen case decisions where a judge talks about a student right of privacy. I think it’s an interesting argument. I just don’t think it would go very far in a court in Oregon.”
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